In similar cases we must act similarly, unless there is a proper reason for distinguishing the cases. This rule does not bar departure from existing precedent, but it does ensure that departure from precedent is proper; that it reflects reason and not fiat; and that it is done for proper reasons of legal policy

Our Supreme Court seldom admits it when it reverses recent doctrine.[3] But in 1995, in Kilosbayan, Inc. v. Morato,[4] it was forced to do so. The Court’s about-face was on whether the petitioners there were the proper parties, i.e., had legal standing, to contest the validity of a government contract.

Just over a year before Morato was decided, the Supreme Court in Kilosbayan, Inc. v. Guingona, Jr.[5]recognized the standing of the same petitioners to question the validity of a similar contract between the same parties on the same ground. Naturally, the petitioners in Morato asked the Court to apply its ruling in Guingona and again recognize their standing. The Court refused, and, while conceding that the doctrine of “stare decisis is usually the wise policy,”[6] instead ruled that the petitioners were not the proper parties who could bring the action. It justified its reversal of the earlier decision by saying that “concern for stability in decisional law [did] not call for adherence to what [had] recently been laid down as the rule”[7] because the rule on standing that Guingona “recently…laid down”[8] was itself “a departure from settled rulings.”[9]

Today, seventeen years after Morato, and more than a hundred years after it was first articulated by our Supreme Court,[10] our rules on legal standing are still the subject of much judicial flip-flopping.

The divergent rulings on the legal standing of the selfsame petitioners in Guingona and Morato (collectively, the “Lotto Decisions”) ostensibly hinged on the number of sitting Justices which adhered to either of two opposing schools of thought. The Morato majority represents what the author calls the Jurisdictionalist School, which posits that the requirement of legal standing “is not a plain procedural rule but a constitutional requirement,”[11] and thus setting it aside “would in effect amount to the Court acting in cases where it has no subject matter jurisdiction.”[12] The Guingona majority, on the other hand, represents what the author calls the Proceduralist School, which posits that “a party’s standing…is a procedural technicality” which the Supreme Court may “set aside in view of the importance of the issues raised.”[13]

The positions taken by these two opposing schools of thought are irreconcilable:[14] the Supreme Court either has the power to set aside the standing requirement, or it has not. And the stubborn insistence of our Justices for the adoption of either one or the other school of thought keeps whirlabout our doctrine of standing—a doctrine which local commentators have labeled “mischievous,”[15] “too arbitrary,”[16] and one of “the most amorphous…in the entire domain of public law.”[17]

Legal standing is “intimately linked to,”[18] and resolved largely “on the basis of,”[19] related judicial policies. These policies are supposed to be crystallized in the different standards of standing which apply depending on the questions raised and the reliefs prayed for. The problem with these standards is that they have been repeatedly “disregarded, to allow action, or harnessed, to bar it, depending upon the whims and caprice of the court.”[20] As a result, these standards have become stilted, i.e., stiffly or artificially formal, and the policy considerations that had birthed them have been obscured.

This paper attempts to remedy this by identifying a dominant, underlying judicial policy and its corollary rules which have helped spur the adoption of not only the different standards of standing articulated by the Jurisdictionalists, but also the doctrine of transcendental importance embraced by the Proceduralists. The policy is one of non-preclusion, which allows standing when withholding it would preclude any legal or political resolution to the question raised. Corollary to this is the rule that standing will be refused when there is either a more proper party who would likely raise the questions brought before the Court, or a more appropriate forum—not necessarily judicial—where the issue raised may be brought.

II. Legal Standing

Legal Standing, or locus standi, is the “right of appearance in a court of justice on a given question.”[21] It satisfies an important requirement before a question involving the constitutionality or legality of a law or other government act may be heard and decided by a court: that it must be raised by the proper party.[22] Stated otherwise, a court will exercise its power of judicial review—which is the power of courts to determine the constitutionality or legality of contested executive and legislative acts[23]— “only if the case is brought before it by a party who has the legal standing to raise the constitutional or legal question.”[24]

The traditional rule is that “only real parties in interest or those with standing, as the case may be, may invoke the judicial power.”[25] Real parties in interest are the proper parties in cases that do not also invoke the power of judicial review. In cases that invoke the power of judicial review, the proper parties are those with standing. In Morato, even though the power of judicial review was invoked, the Court ruled that because no constitutional question was actually involved, the issue was not whether petitioners had legal standing but whether they were the real parties in interest.[26] On this premise the Court declared that the petitioners were not the proper parties because “[i]n actions for the annulment of contracts…the real parties are those who are parties to the agreement or are bound either principally or subsidiarily or are prejudiced in their rights with respect to one of the contracting parties and can show the detriment which would positively result to them from the contract…or who claim a right to take part in a public bidding but have been illegally excluded from it.”[27] This ruling in Morato, however, is sandwiched between prior and subsequent Supreme Court decisions which directly contradict it.[28] In fact, the argument that actions for annulment of government contracts may be instituted only by those bound by it was rejected as early as 1972 in City Council of Cebu City v. Cuizon,[29]in which legal standing was granted to city councilors who assailed a government contract even though no constitutional question was involved. Fairly recently in 2005, Cuizon was cited in Jumamil v. Café,[30]also a case where no constitutional question was involved, in ruling that “[a] taxpayer need not be a party to the contract to challenge its validity.”[31] Also, citizen’s standing (which was asserted in Morato) is granted in public suits because in those cases “the people are regarded as the real party in interest.”[32] Thus, even if no constitutional question is involved, any person with legal standing—although not a real party in interest—may invoke the power of judicial review.

III. The Lotto Decisions

A. The First Lotto Decision: Kilosbayan, Inc. v. Guingona

Guingona was a special civil action for prohibition and injunction which sought to restrain the implementation of a contract between the government agency Philippine Charity Sweepstakes Office (PCSO) and the privately owned Philippine Gaming Management Corporation (PGMC) for the operation of a nationwide on-line lottery system (the “Guingona lotto contract”). The petitioners were Kilosbayan, Inc.; members of its board of trustees who sued in their capacities as such members and as taxpayers and concerned citizens; and two senators and a congressman, who sued in their capacities as members of Congress and as taxpayers and concerned citizens. Their main argument was that the Guingona lotto contract violated the provision in the PCSO Charter which prohibits PCSO from holding and conducting lotteries through a collaboration, association, or joint venture.[33] The Supreme Court agreed with this argument and declared the Guingona lotto contract invalid.

PCSO and PGMC argued that the petitioners lacked legal standing and were not real parties in interest. Seven Justices voted to sustain the petitioners’ legal standing; six voted otherwise.[34] Curiously, the decision didn’t bother to discuss if and why the petitioners had standing; it disposed of the issue merely by asserting that “[a] party’s standing before th[e] Court is a procedural technicality which it may, in the exercise of its discretion, set aside in view of the importance of the issues raised.”[35] The Court supported this assertion by citing previous cases which disposed of the issue of standing in the same way when the issues raised are “of transcendental importance to the public,” and even went further by saying that the issues raised in the case were not only “of paramount public interest,” but also “of a category even higher than those involved in many of the aforecited cases.”[36]

B. The Second Lotto Decision: Kilosbayan, Inc. v. Morato

As stated at the outset, Morato was filed by the same petitioners in Guingona to question the validity of a similar contract between the same parties on the same ground. After Guingona, PGMC and PCSO executed another agreement which they believed was “consistent with the latter’s charter … and conformable to [the] aforesaid Decision.”[37]Morato, very much like Guingona, was a special civil action for prohibition and injunction which sought to restrain the implementation of a contract between PCSO and PGMC for the operation of a nationwide on-line lottery system (the “Morato lotto contract”). The petitioners in Morato were the same as those in Guingona: Kilosbayan, Inc.; members of its board of trustees who sued in their individual and collective capacities as taxpayers and concerned citizens; and the same two senators and congressman who again sued in their capacities as members of Congress and as taxpayers and concerned citizens. Their main argument was that the Morato lotto contract was “basically or substantially the same as or similar to” the Guingona lotto contract,[38] and thus also violated the provision in the PCSO Charter which prohibits PCSO from holding and conducting lotteries through a collaboration, association, or joint venture. Unlike in Guingona, however, the Supreme Court this time disagreed with this argument and declared the Morato lotto contract valid.

PCSO and PGMC again questioned the petitioners’ legal standing. While in Guingona, seven Justices voted to sustain the petitioners’ legal standing and six voted otherwise, in Morato, the numbers switched: seven Justices voted to deny petitioners’ standing and six voted otherwise.[39] The Supreme Court explained how this happened:

the five members of the Court who dissented in the first case (Melo, Quiason, Puno, Vitug and Francisco, JJ.) and the two new members (Mendoza and Francisco, JJ.) thought the previous ruling to be erroneous and its reexamination not to be barred by stare decisis, res judicata or conclusiveness of judgment, or law of the case… .

The decision in the first case was a split decision: 7-6. With the retirement of one of the original majority (Cruz, J.) and one of the dissenters (Bidin, J.), it was not surprising that the first decision in the first case was later reversed.[40]

IV. Standards of Standing

When only private rights are involved, the proper parties who may bring the case to court are those who stand to be benefited or injured by the judgment in the suit, or those entitled to the avails of the suit.[41] In cases like Guingona and Morato, however, “suits are not brought by parties who have been personally injured by the operation of a law or any other government act but by concerned citizens, taxpayers or voters who actually sue in the public interest.”[42] The concept of legal standing arose from the need in these public or constitutional litigations “to regulate the invocation of the intervention of the Court to correct any official action or policy in order to avoid obstructing the efficient functioning of public officials and offices involved in public service.”[43]

Different standards of standing apply depending on the question raised and the reliefs prayed for. The direct injury standard, which requires that the party bringing the action “must have a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement,”[44] is the general rule. The other standards of standing are exceptions to this general rule.[45] Some of these other standards were applied by the Court in Morato to resolve the standing issue.

A. Citizen’s Standing

Every Filipino citizen has legal standing to institute a mandamus action to enforce a public right, because “[w]hen a Mandamus proceeding involves the assertion of a public right, the requirement of personal interest is satisfied by the mere fact that the petitioner is a citizen, and therefore, part of the general ‘public’ which possesses the right.”[46] One such public right is the right of the people to information on matters of public concern under Article III, section 7 of the Constitution,[47] which is a self-executing provision.[48] In Morato, the Court explained that the petitioners did not have citizen’s standing because the Constitutional provisions they invoked “are not … self executing provisions, the disregard of which can give rise to a cause of action in the courts,”[49] and “do not embody judicially enforceable constitutional rights but guidelines for legislation.”[50]

B. Taxpayer’s Standing

Taxpayer standing was first[51] recognized by the Supreme Court on 29 December 1960 in the seminal Pascual v. Secretary of Public Works and Communications,[52] where the Court adopted the American “rule recognizing the right of taxpayers to assail the constitutionality of a legislation appropriating local or state public funds.”[53] Since then, the rule is that “a taxpayer has personality to restrain unlawful expenditure of public funds,”[54] whether the expenditure is pursuant to a statute,[55] a presidential decree,[56] an executive issuance,[57] a presidential authorization,[58] or an executive order.[59] In Morato, the Court ruled that petitioners did not have taxpayer standing because there was “no allegation that public funds [were] being misspent so as to make [the] action a public one.”[60]

C. Legislator’s Standing

Legislators have been accorded standing to sue when they “claim that the official action complained of infringes upon their prerogatives as legislators.”[61] This is because an act “which injures the institution of Congress causes a derivative but nonetheless substantial injury, which can be questioned by a member of Congress,”[62] whether the act was done by an administrative agency,[63] the President,[64] a Constitutional Convention,[65] or any other instrumentality of the government. In Morato, the Supreme Court observed that “the complaint [was] not grounded on the impairment of the powers of Congress,”[66] and, accordingly, indicated that the two senators and congressman did not have standing.

D. Other Standards

There are other standards of standing which were not applicable in Morato. One such standard is that which accords voter’s standing upon the rationale that “a voter whose right of suffrage is allegedly impaired…is entitled to judicial redress.”[67] Another such standard is that which confers “personality to sue in behalf of the succeeding generations … based on the concept of intergenerational responsibility insofar as the right to a balanced and healthful ecology is concerned.”[68] Some of these standards, e.g., government standing and jus tertii standing, are discussed in Part VII of this work.

E. The Doctrine of Transcendental Importance

Noticeably omitted in the ponencia’s discussion in Morato was the one justification of the Guingona majority for resolving the issue of standing in the petitioners’ favor: that a “party’s standing … is a procedural technicality” which may be “set aside in view of the importance of the issues raised.”[69] This doctrine of transcendental importance, which cuts through all standards of standing, is discussed more fully in Parts V and VI of this work.

V. Stilted Standards

My Basic principle is that the rule of law avoids creating areas of discretionary powers, and the fact that it is the Supreme Court that exercises the discretion does not make it tolerable in any degree, for such an eventuality can be worse because no other authority can check Us.

The problem with legal standing’s different standards is their pliability. Consequently, despite the presence of these standards, “standing decisions can come out either way, which is to say that they are too arbitrary. Thus, one’s standing primarily depends on who is sitting.”[71]

For example, in Pasay Law and Conscience Union, Inc. (PLACU) v. Cuneta,[72] in which two issuances of the city mayor were challenged, the Supreme Court recognized the legal standing of PLACU, explaining that “PLACU … is not disqualified to appear as petitioner in this case, because as a non-profit, civic and non-partisan organization … it is merely interested in upholding the rule of law.”[73] This ruling is at odds with IBP v. Zamora,[74] where even though IBP’s “fundamental purpose … under Section 2, Rule 139-A of the Rules of Court, is to elevate the standards of the law profession and to improve the administration of justice,”[75] the Supreme Court still held that “[t]he mere invocation by the IBP of its duty to preserve the rule of law and nothing more, while undoubtedly true, is not sufficient to clothe it with standing in this case. This is too general an interest which is shared by other groups and the whole citizenry.”[76]

Another example is the conflicting rulings on citizen’s suits laid down in Almario v. The City Mayor,[77] Miguel v. Zulueta,[78] and Tañada v. Tuvera.[79] In Zulueta, the Supreme Court held that because the observance of the law is a public duty, any citizen may apply for mandamus to compel public officials to enforce a statute.[80] This ruling completely reversed the ruling in Almario, which was promulgated just three months before Zulueta. In Almario, a citizen’s suit for a mandamus to compel public officials to enforce a statute was denied on the ground that the petitioner was not a real party in interest.[81] To determine legal standing in Almario, the Court used the standard of the “person aggrieved”[82] as it is used in the Rules of Court.[83] This standard was again argued for, but this time rejected, in Tañada v. Tuvera, which upheld the people’s right to be informed on matters of public concern. Prayed for in Tañada was a writ of mandamus to compel publication of various executive issuances. Outright dismissal of the case was sought on the ground that petitioners were “without the requisite legal personality to institute this mandamus proceeding, they not being ‘aggrieved parties’ within the meaning of … the Rules of Court.”[84] The Supreme Court, in recognizing the petitioners’ legal standing, impliedly rejected the standard of the “person aggrieved” which was used in Almario.

Taxpayer standing is just as pliable. Because “a taxpayer’s suit refers to a case where the act complained of directly involves the illegal disbursement of public funds derived from taxation,”[85] our Supreme Court has ruled that “[i]t is only when an act complained of … involves the illegal expenditure of public money that the so-called taxpayer suit may be allowed.”[86] And even if public money will be disbursed, a petitioner will still not have “satisfied the elemental requisite for a taxpayer’s suit”[87] if “the funds … came from donations [and] contributions [and not] by taxation.”[88] Notwithstanding these pronouncements, the Court has recognized taxpayer standing even when no illegal expenditures of public moneys are involved: (1) in Demetria v. Alba,[89] where the constitutionality of a statutory grant to the President of the power to reallocate funds appropriated for the executive branch was questioned; (2) in Maceda v. Macaraig, Jr.,[90] where what was assailed was the legality of a tax refund by way of tax credit certificates and the use of these tax credits to pay for tax and duty liabilities; and (3) in Chavez v. Public Estates Authority (PEA),[91] where an alleged unconstitutional alienation of hundreds of hectares of alienable lands of the public domain was sought to be prevented.

The pliability of legislator’s standing may even be worse. In Bayan (Bagong Alyansang Makabayan) v. Zamora,[92]the Court held that three congressmen did not have legislator’s standing “in the absence of a clear showing of any direct injury to their person or to the institution to which they belong,”[93] and because “the allegation of impairment of legislative power … are more apparent than real.”[94] This ruling is in direct contrast with the case of Gonzales v. Macaraig, Jr.,[95] where the “legal standing of the Senate, as an institution, was recognized”[96] on the reasoning that “a member of the Senate has the requisite personality to bring a suit where a constitutional issue is raised.”[97]

Our Supreme Court has also given itself the discretion over the applicability of the different standards of standing. In Costas v. Aldanese,[98] the Court held that in citizen’s suits, though the standing of the petitioner is clear, “the granting or refusing of the writ [of mandamus]”[99] was still “discretionary with the court.”[100] Similarly, the Court has also given itself the discretion whether or not to entertain taxpayer’s suits.[101]

What stilts standing’s different standards almost to their breaking point, however, is a doctrine that is not exclusive to legal standing: the transcendental importance doctrine. The problem with this doctrine (which is more fully discussed in the next part of this work) was in full display in the Lotto Decisions. The ponencia in the 2nd lotto decision eschewed a discussion of why the standing requirement was waived in the 1st lotto decision, but not in the second. Justice Feliciano, however, was quick to point out the elephant in the room. Concurring in the 1st lotto decision, Justice Feliciano identified the “considerations of principle”[102] which called for the application of the transcendental importance doctrine: first, “the character of the funds or other assets involved in the case is of major importance”[103]; second, “the presence of a clear case of disregard of a constitutional or statutory prohibition by the public respondent agency or instrumentality of the government”[104]; third, “the lack of any other party with a more direct and specific interest in raising the questions”[105]; and fourth, the “wide range of impact”[106] of the government act assailed. In the 2nd lotto decision, Justice Feliciano’s dissenting opinion began by pointing out that “[a]ll the factors which, to my mind, pressed for recognition of locus standi on the part of petitioners in the first Kilosbayan case, still exist and demand, with equal weight and insistence, such recognition in the present or second Kilosbayan case.”[107] As already pointed out, the Lotto Decisions were brought by the same petitioners to question the validity of a similar contract between the same parties on the same ground. In the 1st Lotto Decision, our Supreme Court invoked the transcendental importance doctrine in order to waive the standing requirement. In the 2nd Lotto Decision, the Court did not opt to waive the requirement, and ruled that the petitioners this time did not have standing. The voting in the 1st Lotto Decision was 7-6 in favor of the petitioners; in the 2nd, it was 7-6 against them.

VI. Two Opposing Schools of Thought

A. The Proceduralist School

Strictly speaking, Guingona did not lay down any rule on standing; the Supreme Court in that case simply exercised its asserted discretion to brush aside the requirement of legal standing—which the Proceduralist School argues is a mere “procedural technicality”[108]—whenever it deems that the resolution of the issue before it is “of transcendental importance to the public”[109] or of “paramount public interest,”[110] or if the case raises “serious constitutional questions”[111] that must be immediately resolved. Under this doctrine of transcendental importance, our Supreme Court has assumed jurisdiction over cases even after finding that the petitioners were not the proper parties who could file the suit.[112] Sometimes, like in Guingona, the Court doesn’t even bother to discuss or apply any rule or standard of legal standing and simply states that it is brushing aside the standing requirement and would rule on the issues raised.[113]

Objections to taxpayers’ suit for lack of sufficient personality, standing, or interest are, however, in the main procedural matters, and in keeping with the Court’s duty, under the 1987 Constitution, to determine whether or not the other branches of government have kept themselves within the limits of the Constitution and the laws and that they have not abused the discretion given to them, the Court has brushed aside technicalities of procedure and has taken cognizance of these petitions.[116]

The transcendental importance doctrine, however, is at least sixty-two years older than the Grave Abuse of Discretion Clause, which is a novel provision of the 1987 Constitution. The germ of the doctrine of transcendental importance can be found in the 1925 decision Yu Cong Eng v. Trinidad,[117] where because “the property and personal rights of nearly twelve thousand merchants [were] affected,”[118] and the assailed statute was “a new law not yet interpreted by the courts,”[119] there was “an extraordinary situation which call[ed] for a relaxation of the general rule.”[120] This extraordinary situation prompted the Supreme Court “in the interest of the public welfare and for the advancement of public policy… to overrule the defense of want of jurisdiction in order that [It] may decide the main issue.”[121] And for at least eighty-seven years, our Supreme Court, in view of the importance of the issues raised, has overruled not only the defenses of lack of legal standing or “want of jurisdiction,”[122] but also those of “purely political question,”[123] “advisory opinion,”[124] “mootness,”[125] and others also rooted in traditional case and controversy requirements.

B. The Jurisdictionalist School

The Jurisdictionalists take a position directly opposed to that taken by the Proceduralists: they argue that the requirement of locus standi “is not merely procedural or technical but goes into the essence of jurisdiction and the competence of courts to take cognizance of justiciable disputes.”[126] Justice Florentino Feliciano, in a concurring opinion, explains that “disregard of the requirement of legal standing, where such requirement is applicable, would in effect amount to the Court acting in cases where it has no subject matter jurisdiction”[127] because

[a] decision on the merits rendered in a case where the petitioners do not have the necessary legal standing, would in essence be a decision not rendered in a proper, justiciable controversy or case. Such a decision appears to me to be very close to a decision rendered in a petition for declaratory relief or for an advisory opinion. The Court, of course, has no jurisdiction ratione materiae over declaratory relief cases or petitions for advisory opinion.[128]

Justice Reynato Puno goes even further by accusing the Proceduralists of “amending the Constitution by judicial fiat”:[129]

the rule on locus standi…is not a plain procedural rule but a constitutional requirement derived from section 1, Article VIII of the Constitution which mandates courts of justice to settle only “actual controversies involving rights which are legally demandable and enforceable.” The phrase has been construed since time immemorial to mean that a party in a constitutional litigation must demonstrate a standing to sue. By downgrading the requirement of locus standi as a procedural rule which can be discarded in the name of public interest, we are in effect amending the Constitution by judicial fiat.[130]

Perhaps the staunchest defender of the Jurisdictionalist School is Justice Vicente V. Mendoza, who, in his separate opinion in IBP v. Zamora, directly confronts the Proceduralists by arguing that in cases of transcendental importance to the public, a stricter adherence to standing requirements is even more prudent:

“Standing is not ‘an ingenious academic exercise in the conceivable’ … but requires … a factual showing of perceptible harm.”

. . .

We are likely to err in dismissing the suit brought in this case on the ground that the calling out of the military does not violate the Constitution, just as we are likely to do so if we grant the petition and invalidate the executive issuance in question. For indeed, the lack of a real, earnest and vital controversy can only impoverish the judicial process…

. . .

We are told, however, that the issues raised in this case are of “paramount interest” to the nation. It is precisely because the issues raised are of paramount importance that we should all the more forego ruling on the constitutional issues raised by petitioner and limit the dismissal of this petition on the ground of lack of standing of petitioner. A Fabian policy of leaving well enough alone is a counsel of prudence.[131]

VII. Common Grounds

The position taken by the Jurisdictionalists is irreconcilable with that taken by the Proceduralists:[132] the Supreme Court either has the power to set aside the standing requirement, or it has not. Fortunately, these two opposing schools of thought agree on a common undergrowth of weighty considerations that appear to be more determinative of the question of standing than even the different standards of standing themselves. In fact, this underlying judicial policy and its corollary rules played heavily in the adoption of not only the different standards of standing articulated by the Jurisdictionalists, but also the Doctrine of Transcendental Importance embraced by the Proceduralists. The policy is one of non-preclusion, which allows standing when withholding it would preclude any legal or political resolution to the question raised. Corollary to this is the rule that standing will be refused when there is either a more proper party who would likely raise the questions brought before the Court, or a more appropriate forum—not necessarily judicial—where the issue may be resolved.

A. The Policy of Non-Preclusion

The policy of non-preclusion accords a petitioner standing when withholding it would preclude any legal or political resolution to the question raised. It is similar to the United States Federal Supreme Court’s “presumption in favor of judicial enforceability of constitutional rights”[133] laid down in Davis v. Passman:[134]

At least in the absence of a textually demonstrable constitutional commitment of an issue to a coordinate political department, we presume that justiciable constitutional rights are to be enforced through the courts. And, unless such rights are to become merely precatory, the class of those litigants who allege that their own constitutional rights have been violated, and who at the same time have no effective means other than the judiciary to enforce these rights, must be able to invoke the existing jurisdiction of the courts for the protection of their justiciable constitutional rights.[135]

Non-preclusion was an important policy consideration in the first case where the “transcendental importance” doctrine[136] was applied to grant legal standing:[137]The Emergency Powers Cases.[138] These were consolidated cases questioning the validity of four executive orders. One of these cases involved an executive order which appropriated funds for the operation of the Philippine Government from July 1949 to June 1950; the petitioner, “as a tax-payer, an elector, and president of the Nacionalista Party,”[139] applied for “a writ of prohibition to restrain the Treasurer of the Philippines from disbursing money under this Executive Order.”[140] Another case involved an executive order which appropriated funds for the 1949 national elections; the petitioner, “as a citizen, tax-payer and voter,”[141] asked the Court to prohibit any disbursement or expenditure of the appropriated amount. There was an objection to the standing of the petitioners in these two cases, but the Court ruled that “the transcendental importance to the public of these cases demands that they be settled promptly and definitely, brushing aside, if we must, technicalities of procedure.”[142]

The standing requirement in the Emergency Powers Cases needed to be brushed aside because the rule at the time it was decided was that laid down in the 1945 case Custodio v. The President of the Senate.[143]Custodio was a petition for prohibition questioning the constitutionality of an appropriation that would fund back-salaries of congressmen. The petitioner alleged, “as his only interest or grievance in instituting this action, that he is a citizen and taxpayer of the Philippines, and also an employee of the Philippine Government, entitled to all rights and privileges including back pays.”[144] The Court dismissed the petition, explaining that “the constitutionality of a legislative act is open to attack only by a person whose rights are affected thereby, that one who invokes the power of the court to declare an Act of Congress to be unconstitutional must be able to show not only that the statute is invalid but that he has sustained, or is in immediate danger of sustaining, some direct injury as the result of its enforcement, and not merely that he suffers in some indefinite way in common with people generally.”[145] The problem with the Custodio ruling was succinctly put by Justice Felicisimo Feria in his concurrence in the Emergency Powers Cases: “if a tax-payer can not attack the validity of the executive orders in question or a law requiring the expenditure of public moneys, no one under our laws could question the validity of such laws or executive orders.”[146]

Non-preclusion was also a weighty consideration in the case where citizen’s standing was first granted: Severino v. Governor-General.[147] This was a petition for a writ of mandamus to compel the Philippine Governor-General to call a special election for municipal president. In 1909, it was declared that no one was legally elected municipal president of Silay, Province of Occidental Negros. Instead of calling a special election as required by law, the Governor-General directed the provincial board to fill the vacancy by appointment and to submit to him, for his approval, the name of the person to be appointed. The petitioner, Lope Severino, sued as “a resident, a duly qualified elector, and local chief of the Nacionalista party in the town of Silay.”[148] On the question “whether or not… Lope Severino is a proper complainant,”[149] the Court explained that

It is true… that the right which he seeks to enforce is not greater or different from that of any other qualified elector in the municipality of Silay. It is also true that the injury which he would suffer in case he fails to obtain the relief sought would not be greater or different from that of the other electors; but he is seeking to enforce a public right as distinguished from a private right. The real party in interest is the public, or the qualified electors of the town of Silay.[150]

Severino justified its relaxation of the standard on the non-preclusion policy: “if the relator is not a proper party to these proceedings no other person could be, as … it is not the duty of the law officer of the Government to appear and represent the people in cases of this character.”[151] The same policy informed the grant of citizen’s standing in Tañada v. Tuvera,[152] where the Court recognized that “[i]f petitioners were not allowed to institute this proceeding, it would indeed be difficult to conceive of any other person to initiate the same, considering that the Solicitor General, the government officer generally empowered to represent the people, has entered his appearance for respondents in this case”[153]; and in Miguel v. Zulueta,[154] where the Court realized that “to dismiss the action [on the ground of lack of standing] would effectively mean that no private person will ever have the right to go to courts to challenge said unlawful government act and others of a similar character.”[155]

The Lotto Decisions were also argued in terms of non-preclusion. Among the Proceduralist majority in Guingona were Justices Isagani Cruz and Florentino Feliciano. Justice Cruz declared that he “cannot agree that out of the sixty million Filipinos affected by the proposed lottery, not a single solitary citizen can question the agreement.”[156] In the same vein, Justice Feliciano enumerated “the lack of any other party with a more direct and specific interest in raising the questions”[157] as one of the “considerations of principle which … require an affirmative answer to the question of whether or not petitioners [had standing].”[158] In Morato, the ponencia, representing the Jurisdictionalist majority, explained that denying standing to the petitioners “will not leave without remedy any perceived illegality in the execution of government contracts.”[159] Dissenting Justice Florenz Regalado, a Proceduralist, disagreed: “if the majority would have its way in this case, there would be no available judicial remedy against irregularities or excesses in government contracts for lack of a party with legal standing or capacity to sue.”[160] Another Proceduralist, Justice Hilario Davide, elaborated on Justice Regalado’s concern:

Only a very limited few may qualify, under the real-party-in-interest rule, to bring actions to question acts or contracts tainted with such vice. Where, because of fear of reprisal, undue pressure, or even connivance with the parties benefited by the contracts or transactions, the so-called real party in interest chooses not to sue, the patently unconstitutional and illegal contracts or transactions will be placed beyond the scrutiny of this Court, to the irreparable damage of the Government, and prejudice to public interest and the general welfare.

By way of illustration, the [Guingona] lotto contract would not have reached this Court if only the so-called real party in interest could bring an action to nullify it. Neither would the [Morato lotto contract], since for reasons only known to them, none of those who had lost in the bidding for the first lotto contract showed interest to challenge it.[161]

B. The More Proper Party Rule

Justice Reynato Puno, who was part of the Guingona Jurisdictionalist minority, acknowledged that “[t]he majority granted locus standi to petitioners because of lack of any other party with more direct and specific interest.”[162] Justice Feliciano clarifies that what was truly determinative is not the lack of “any other party with more direct and specific interest,”[163] but the lack of “any other party with more direct and specific interest in raising the questions here being raised”[164]:

Though a public bidding was held, no losing or dissatisfied bidder has come before the Court. The Office of the Ombudsman has not, to the knowledge of the Court, raised questions about the legality or constitutionality of the [Guingona lotto contract]. The National Government itself, through the Office of the Solicitor General, is defending the [Guingona lotto contract].[165]

The distinction Justice Feliciano makes is important: the standing requirement was relaxed not because if the Court had not done so there would have been no other party who could have raised the issue, but because if the Court had not done so, no other party would.

In Guazon v. De Villa,[166] a petition “to prohibit the military and police officers … from conducting ‘Areal Targeting Zonings’ or ‘Saturation Drives’”[167] which allegedly “follow a common pattern of human rights abuses,”[168] “[n]ot one of the several thousand persons treated in the illegal and inhuman manner described by the petitioners appear[ed] as a petitioner or ha[d] come before a trial court… Moreover, there must have been tens of thousands of nearby residents who were inconvenienced in addition to the several thousand allegedly arrested. None of those arrested ha[d] apparently been charged and none of those affected ha[d] apparently complained.”[169] Nevertheless, despite noting that “those directly affected by human rights violations should be the ones to institute court actions,”[170] the Court ruled that “[i]t is the duty of the court to take remedial action even in cases … where the petitioners do not complain that they were victims of the police actions, where no names of any of the thousands of alleged victims are given … as long as the Court is convinced that the event actually happened,”[171] and proceeded to grant the relief of enjoining “the acts violative of human rights alleged by the petitioners as committed during the police actions … until such time as permanent rules to govern such actions are promulgated.”[172] Justice Isagani Cruz offered an explanation why no one directly affected had complained:

The reason for the silence is fear. These raids are conducted not in the enclaves of the rich but in deprived communities, where the residents have no power or influence. The parties directly aggrieved are afraid. They are the little people. They cannot protest lest they provoke retaliation for their temerity.[173]

This rule that standing will be refused when there is a more proper party who would likely raise the questions brought before the Court is eloquently stated in Justice de Castro’s concurrence in Judge De la Llana v. Alba:[174]

A taxpayer may bring an action to raise the question of constitutionality of a statute only when no one else can more appropriately bring the suit to defend a right exclusively belonging to him, and, therefore, would localize the actual injury to his person, and to no other… With the incumbent judges undoubtedly being the ones under petitioners’ theory, who would suffer direct and actual injury, they should exclude mere taxpayers who cannot be said to suffer as “direct” and “actual” an injury as the judges and justices by the enforcement of the assailed statute, from the right to bring the suit.[175]

An important case where the More Proper Party Rule weighed heavily was Francisco, Jr. v. The House of Representatives,[176] where the question before the Court was whether the filing of a second impeachment complaint against then Chief Justice Hilario Davide, Jr. fell within the one-year bar provided in the Constitution.[177]Amicus curiae Dean Raul Pangalangan advocated that “when the real party in interest is unable to vindicate his rights by seeking the same remedies, as in the case of the Chief Justice who, for ethical reasons, cannot himself invoke the jurisdiction of this Court, the courts will grant petitioners standing.”[178] Justice Sandoval-Gutierrez, in a separate opinion, agreed with this, stating that“[i]t would be an unseemly act for the Chief Justice to file a petition with this Court where he is primus inter pares. ‘Delicadeza’ and the Rules require him not only to inhibit himself from participating in the deliberations but also from filing his own petition.”[179] The rule also seemed to sway the ruling in Tolentino v. The Board of Accountancy,[180] where standing was refused to an accountant who sought relief “not for his own personal benefit, or because his rights or prerogatives … [were] adversely affected, but rather for the benefit of persons belonging to other professions or callings who [were] not parties to [the] case.”[181] Obviously it was unlikely that no member of those other professions, e.g., a lawyer, could and would have filed a case if the statute assailed had unconstitutionally prejudiced his or her interests.

A possible exception to the more proper party rule is standing jus tertii, which would allow a person to assert the rights of a more proper party “if it can be shown that the party suing has some substantial relation to the third party, or that the third party cannot assert his constitutional right, or that the right of the third party will be diluted unless the party in court is allowed to espouse the third party’s constitutional claim.”[182] The justification behind standing jus tertii is “society’s right in the protection of certain preferred rights in the Constitution even when the rightholders are not before the court. The theory is that their dilution has a substantial fall out detriment to the rights of others, hence the latter can vindicate them.”[183] In his dissent in Guingona, however, Justice Reynato Puno may have emasculated the just tertii standard by asserting as one of its requirements “an injury in fact to himself”[184] who brings the action and positing—in familiar Jurisdictionalist language—that the “requirement of injury in fact cannot be abandoned for it is an essential element for the exercise of judicial power.”[185]

In certain cases, the more proper party is identified by statute. For example, in Abendan v. Llorente[186]—the first Philippine Supreme Court decision which discussed legal standing—the petitioner, suing as a qualified elector, was refused standing partly because the election law then in force allowed only candidates, and not voters, to contest the legality of an election. Similarly, in Lava v. Lopez Vito,[187] the petitioner who sought to have his name registered under the tickets of three different political parties was refused standing because, under the relevant statute, the right to have the name of a candidate included in a party ticket belonged not to the candidate, but to the party concerned. The Court thus held that “the real party in interest in the matter of the inclusion of a candidate in a party ticket is the political party concerned,” and explained that this view was “in harmony with the modern trend of simplifying the rules of practice and procedure in the courts, because it will avoid multiplicity of suits. If it be held that the individual candidate is the real party in interest, the result would be that in a case where ten candidates, for instance, are excluded by the Commission on Elections from the ticket of a political party, then separate suits would have to be brought to test the legality of the action of the Commission. Such a result should be avoided.”[188]

Another example of a case where the Court recognized a statutorily identified more proper party is People v. Vera.[189] In this case, the Court allowed the Solicitor General and the City Fiscal, who were the statutorily designated representatives of the People of the Philippines in criminal actions, to assail the constitutionality of the Probation Act. Compare this with Severino v. Governor-General,[190] where citizen’s standing was granted because “[n]o express provision is found making it the duty of any official of the Government to bring these proceedings. So, if the relator is precluded from maintaining these proceedings for the purpose of having his rights passed upon by this court, these questions could not be raised.”[191]

The Rules of Court may also identify the more proper party to be accorded locus standi. This is best illustrated by Lumontad v. Cuenco,[192] a quo warranto petition[193] which sought to oust six senators from their positions in the Senate. After noting that under the Rules of Court, an action for usurpation of office may be brought by either the Solicitor General or a fiscal and in the name of the State, or by and in the name of a person claiming to be entitled to the usurped public office, the Supreme Court dismissed the petition on the ground that the petitioner—who brought the action not by claim of entitlement “to hold any of the positions of respondent Senators,”[194] but as a “citizen, a qualified elector, a tax payer and a qualified candidate for senator”[195]—was “not among the persons specifically authorized to commence an action of quo warranto, and, under the maxim of ‘inclusio unius est exclusio alterius’,” had “no legal personality to file the petition.”[196] Similarly, in Benigno S. Aquino, Jr. v. Commission on Elections,[197]the Supreme Court noted that the petition collaterally attacked the title of Philippine President held by then President Ferdinand E. Marcos, and was therefore in the nature of a quo warranto proceeding. Explaining that “[o]nly the Solicitor General or the person who asserts title to the same office can legally file such a quo warranto petition,”[198] and observing that “[t]he petitioners do not claim such right to the office and not one of them is the incumbent Solicitor General,”[199] the Supreme Court found that the petitioners had “no personality to file the suit.”[200] Compare these rulings with that in Municipality of Malabang v. Benito,[201] where the Court, in granting standing, explained that “generally, an inquiry into the legal existence of a municipality is reserved to the State in a proceeding for quo warranto or other direct proceeding, and that only in a few exceptions may a private person exercise this function of government. But the rule disallowing collateral attacks applies only where the municipal corporation is at least a de facto corporation. For where it is neither a corporation de jure nor de facto, but a nullity, the rule is that its existence may be questioned collaterally or directly in any action or proceeding by anyone whose rights or interests are affected thereby, including the citizens of the territory incorporated.”[202]

The case of Anti-Chinese League of the Phils. v. Felix[203]justifies limiting the grant of locus standi to legally designated more proper parties in terms of “the regular and orderly conduct of court proceeding”:[204]

It is true that a court proceeding for naturalization of an alien is of public interest or may affect the Filipino people, because a foreigner would thereby be adopted and clothed with the privileges of citizenship; but in all such proceedings the right to represent and protect the interest of the people is vested by law in some public officer or the Solicitor General, and private citizens cannot, unless they have special legal interest, be allowed to take part therein for the regular and orderly conduct of court proceeding. Criminal actions for violation of public offenses and special civil action of quo warranto against a person that illegally holds or usurps a public office are of more transcendental effect, because disturbance of public order by the commission of a crime and the exercise of governmental powers by a usurper affect more vitally the well-being of the citizens or inhabitants of a country; and yet the law does not confer the right to institute such actions upon any private individual. If a public-spirited citizen believes that a petitioner for naturalization is unworthy or does not have all the requirements of the law to become a citizen, the proper step for him to take is to so inform the Solicitor General or the provincial fiscal, and furnish them with such information and evidence as he may have against the petitioner, in order to enable said officers to perform their duties. …

[I]n naturalization proceedings only the Solicitor General and the provincial fiscals, and not everybody, are allowed to intervene on behalf of the government or the people. To allow any private individual or citizen to appear and side with or oppose a petitioner for naturalization would or might render a naturalization proceeding chaotic and long if not interminable; because if any private individual or citizen may appear and oppose a petition for naturalization, he may also, for one reason or another, move for the cancellation of the naturalization certificate at any time thereafter.[205]

The ponencia in Morato justified the Court’s refusal to accord standing partly in terms of the More Proper Party Rule, pointing out that

[T]he Constitution requires that the Ombudsman and his deputies, “as protectors of the people shall act promptly on complaints filed in any form or manner against public officials or employees of the government, or any subdivision, agency or instrumentality thereof including government-owned or controlled corporations.” In addition, the Solicitor General is authorized to bring an action for quo warranto if it should be thought that a government corporation, like the PCSO, has offended against its corporate charter or misused its franchise.[206]

Justice Regalado, in his dissent, viewed the ponencia’s ruling as unrealistic:

should this Court now sustain the assailed contract, of what avail would be the suggested recourse to the Ombudsman? Finally, it is a perplexing suggestion that petitioners ask the Solicitor General to bring a quo warranto suit, either in propria personal or ex relatione, not only because one has to contend with that official’s own views or personal interests but because he is himself the counsel for respondents in this case.[207]

Justice Regalado added that “Any proposed remedy must take into account not only the legalities in the case but also the realities of life.”[208]

In Tatad v. Garcia,[209] a Proceduralist majority followed the Guingonaruling on locus standi and allowed a taxpayer’s suit questioning the validity of a government contract. Justice Mendoza, taking exception to the majority’s ruling on the standing issue, lamented that the “result is to convert the Court into an office of ombudsman for the ventilation of generalized grievances.”[210] He may have been alluding to the Ombudsman’s power to direct any government official, “in any appropriate case, and subject to such limitations as may be provided by law, to furnish it with copies of documents relating to contracts or transactions entered into by his office involving the disbursement or use of public funds or properties, and report any irregularity to the Commission on Audit for appropriate action.”[211] This interpretation would make the Ombudsman the more proper party to bring challenges to government contracts before the Commission on Audit, which has “exclusive authority” to enforce “accounting and auditing rules and regulations…for the prevention and disallowance of irregular, unnecessary, excessive, extravagant, or unconscionable expenditures or uses of government funds and properties.”[212] As Justice Davide warns us in Morato, however, “it is fraught with unimaginable danger to public interest if neither the Commission on Audit (COA), nor the Ombudsman, or the Office of the Solicitor General, would take any action on the matter.”[213]

C. The More Appropriate Forum Rule

Justice Davide’s reference to the COA addresses another corollary rule of the non-preclusion policy, which is that standing will be refused when there is a more appropriate forum—not necessarily judicial—where the issue may be resolved. The ponencia in Morato posited that “[q]uestions as to the nature or validity of public contracts or the necessity for a public bidding before they may be made can be raised in an appropriate case before the Commission on Audit.”[214] In the resolution to the motion for reconsideration, the Morato majority expounded that “petitioners might try the Commission on Audit, the Ombudsman or the Solicitor General”[215] because “[t]he rules on standing do not obtain in these agencies; petitioners can file their complaints there ex relatione.”[216] Justice Regalado, however, also viewed this as unrealistic, observing that it was “highly improbable that the Commission on Audit would deign deal with those whom the majority says are strangers to the contract.”[217]

Justice Padilla grounded the ponencia’s suggestion (to first resort to the Commission on Audit) on the doctrine of primary jurisdiction:

On the allegation of lack of public bidding on the [Morato lotto Contract], the Commission on Audit (COA) has yet to resolve a case where the issue of the validity of the [Morato lotto Contract] due to lack of public bidding has been squarely raised … the Court should not pre-empt the determination and judgment of the COA on matters which are within its primary jurisdiction under the Constitution.[218]

This is similar to Justice Vitug’s suggestion in the first lotto decision that the Court should not pre-empt the Securities and Exchange Commission, who had primary jurisdiction over some of the issues raised:

A further set-back in entertaining the petition is that it unfortunately likewise strikes at factual issues. The allegations … require the submission of evidence. This Court is not a trier of facts, and it cannot, at this time, resolve the above issues. Just recently, the Court has noted petitioners’ manifestation of its petition with the Securities and Exchange Commission “for the nullification of the General Information Sheets of PGMC” in respect particularly to the nationality holdings in the corporation. The doctrine of primary jurisdiction would not justify a disregard of the jurisdiction of, nor would it permit us to now preempt, said Commission on the matter.[219]

Denying standing on the consideration that the agency with primary jurisdiction would be the more proper forum where the issue should be brought is as old as the 1923 case Costas v. Aldanese,[220]which qualified the Severino doctrine. Costas was a citizen’s suit alleging that a motorboat operating on Philippine waters did not carry the statutorily required complement of engineers and praying that the “Insular Collector be ordered to require the owner, outfitter, consignee and captain of said boat to employ thereon the requisite number of qualified engineers.”[221] There was no showing that the same request was first filed with the Insular Collector, thus the Court denied standing because it was “better to leave the responsibility for securing the fulfillment of duties like that now under consideration to the administrative and executive superiors of respondent. The petitioner sues in the right of the public, but we see no public good to be attained by judicial interference.”[222] Later, in Almario v. The City Mayor,[223] the Court, in refusing standing, echoed this pronouncement in Costas by pointing out that the petitioner had not yet exhausted all administrative remedies available to him.

The doctrines of primary jurisdiction and exhaustion of administrative remedies work to restrict access to courts of citizens and taxpayers who otherwise would have been accorded standing because the right of action to petitions for certiorari, prohibition, or mandamus—the main vehicles for citizen’s and taxpayer’s suits—require that there is no other “plain, speedy and adequate remedy in the ordinary course of law.”[224] The case of Guazon v. De Villa[225]demonstrates the prudence in this. Although (as discussed above) the relief sought in the petition was to “to prohibit the military and police officers … from conducting ‘Areal Targeting Zonings’ or ‘Saturation Drives’,”[226] the Court instead merely remanded the petition to the trial courts; forwarded copies of the decision “to the Commission on Human Rights, the Secretary of Justice, the Secretary of National Defense, and the Commanding General PC-INP for the drawing up and enforcement of clear guidelines to govern police actions intended to abate riots, civil disturbances, flush out criminal elements, and subdue terrorist activities”[227]; and temporarily restrained the alleged human rights violations committed during the saturation drives until the guidelines had been promulgated. Remember that in De Villa, not one of the alleged victims joined as petitioner, and thus, only mere allegations reached the Court. Because of this, the Supreme Court ruled that

The remedy is not an original action for prohibition brought through a taxpayers’ suit. Where not one victim complains and not one violator is properly charged, the problem is not initially for the Supreme Court. It is basically one for the executive departments and for trial courts. Well meaning citizens with only second hand knowledge of the events cannot keep on indiscriminately tossing problems of the executive, the military, and the police to the Supreme Court as if we are the repository of all remedies for all evils…

. . .

The problem is appropriate for the Commission on Human Rights. A high level conference should bring together the heads of the Department of Justice, Department of National Defense and the operating heads of affected agencies and institutions to devise procedures for the prevention of abuses.[228]

The reason why not only the executive departments with primary jurisdiction, but also the trial courts are more appropriate fora for the De Villa petition is explained by Justice Padilla in his separate opinion:

since this Court is not a trier of facts—and this case involves certainty of facts alleged by petitioners and denied by respondents—this case should be referred to a proper trial court where the petitioners can present evidence to support and prove the allegations they make of such brutal and inhuman conduct on the part of military and police units.[229]

The same point was argued by Justice Tinga in his dissent in David v. Arroyo:

the problem with directly adjudicating that the injuries inflicted on David, et al., as illegal, would be that such would have been done with undue haste, through an improper legal avenue, without the appropriate trial of facts, and without even impleading the particular officers who effected the arrests/searches/seizures. …

Indubitably, any person whose statutory or constitutional rights were violated … deserves redress in the appropriate civil or criminal proceeding … Yet a ruling from this Court, without the proper factual basis or prayer for remuneration for the injury sustained, would ultimately be merely symbolic … the Court … will be harmed by a ruling that unduly and inappropriately expands the very limited function of the Court as a trier of facts on first instance.[230]

The Morato majority also noted that “the legislative and executive branches of the government, rather than the courts”[231] are the “appropriate fora for the advocacy of petitioners’ views,”[232] and suggested that “the provision on initiative and referendum as a means whereby the people may propose or enact laws or reject any of those passed by Congress.”[233] The Jurisdictionalists had also made this suggestion in Guingona. Justice Puno, in particular, argued that “the proper forum for this debate, however cerebrally exciting it may be, is not this court but congress.”[234] Justice Kapunan made the same point:

[N]o issue brought before this court could possibly be so fundamental and paramount as to warrant a relaxation of the requisite rules for judicial review developed by settled jurisprudence in order to avoid entangling this court in controversies which properly belong to the legislative or executive branches of our government.[235]

VIII. Bickel’s Mediating Techniques of “Not Doing”

The previous parts of this work discuss legal standing in a vacuum, as if it were a discrete issue unrelated to others.[236] It’s not. Standing is just one of the many “mediating techniques of ‘not doing’”[237] which in practice operate not as a set of rules, but as a box of tools. Like most tools, these mediating techniques are value-neutral; they may be used to build bridges connecting official actions to public suits, or to erect walls between them.

In the U.S., these tools have been used conservatively to “[cushion] the clash between the Court and any given legislative majority and [strengthen] the Court’s hand in gaining acceptance for its principles.”[238] Here in the Philippines, these tools—especially the doctrines of political question and standing—have been used liberally in order to expand judicial power “even beyond the framers of the 1987 Constitution’s wildest dreams.”[239]

The non-preclusion policy and its corollary rules of more proper party and more appropriate forum are heuristic concepts intended to explain why our Supreme Court has wielded one of these mediating techniques (standing) in the way that it has in previous cases, and to predict how the Court may use it in future ones. They are not meant to advocate a position in the broader debate between judicial activism and judicial restraint, where the doctrine of standing is a central issue.

IX. Conclusion

The question of legal standing “is but corollary to the bigger question of proper exercise of judicial power.”[240] In fact, the law of legal standing “raises acute questions”[241] not only about “the role of judicial review, or, more broadly, judicial control of public officers,”[242] but also “about People and how they want to participate in government.”[243] Despite this, our Supreme Court resolves issues of legal standing either by using standards that narrowly focus on the directness of the injury or the generalized nature of the claim, or by summarily waiving the requirement altogether. The Court seldom, if at all, disposes of a standing issue in terms of the proper role of the judiciary in our system of separated governmental powers. This focus on stilted standards and asserted discretions rather than on the policy considerations that underlie the Court’s reasoning affirms Justice Vicente V. Mendoza’s concern that “no serious efforts have been really made to examine the nature and basis of the power of review of our courts, much less of the standards by which the exercise of that power must be guided. Like the air we breathe we simply assume that the power is there, and whether its results should be praised or condemned is often a matter of whose ox is gored.”[244] This paper attempts to address Justice Mendoza’s concern by identifying policy considerations which consistently sway our Supreme Court Justices—whether of Jurisdictionalist or Proceduralist persuasion—in deciding if a party should be allowed to invoke the courts’ power of judicial review.

Identifying the non-preclusion policy and its corollary rules of more proper party and more appropriate forum, however, will not by itself straighten standing’s different standards. The U.S. Supreme Court, for example, has already taken into account a similar policy,[245] but that has not made their standards of standing any less stilted.[246] Also, there might be weightier policy considerations, not exclusive to standing, which are beyond the scope of this paper (an example of this would be the Court’s perceived need “to formulate controlling principles to guide the bench, the bar, the public and, most especially, the government”).[247] Finally, as discussed in Part VIII, the liberalization of our doctrine of standing is just a part of a larger trend of “relaxation of judicial review’s traditional restraints.”[248] It would take more than a legal monograph to ensure the stability of any legal doctrine, much less one as erratic as that of locus standi. But, by demonstrating the stiltedness of these standards and identifying enduring policy considerations which, having been pointed out, might now be more vigorously discussed, this paper hopes to add to the cement which might one day make concrete the foundations of our law on legal standing.

I thank the following people: Justice Vicente V. Mendoza, who was my professor in Judicial Review—where legal standing was extensively discussed; Prof. Rudyard Avila, who piqued my interest in legal writing; Oscar Franklin Tan, who was my first mentor on the intricacies of Constitutional Theory; Dean Raul Pangalangan, who advised me on how to better articulate these intricacies; and Prof. Solomon Lumba, who helped me in the conceptualization of and research for this paper.

All mistakes in this legal monograph are attributable solely to the Author.

[14] The Supreme Court of Israel has adopted the view that when the claim alleges a major violation of the rule of law, every person in Israel has legal standing to sue. Similarly, the Constitution of the Republic of South Africa expressly grants legal standing to enforce its Bill of Rights to anyone acting in the public interest. (Barak, supra note 2, at 108) Both Proceduralists and Jurisdictionalists may be able to agree on these solutions. Nevertheless, as they have been thus far formulated, the opposing positions of the two schools remain irreconcilable.

[21] De Castro v. Judicial and Bar Council, G.R. No. 191002, Mar. 17, 2010; David v. Arroyo, G.R. No. 171396, May 3, 2006; See also Lumba, supra note 16, at 725 (where legal standing is defined as the “right of action of private persons to bring public actions”). See also Laurence Tribe, Constitutional Choices 99 (1985) (where standing is defined as “that aspect of the law of justiciability that is concerned with identifying which parties may raise legal arguments or claims.”).

[27] Id.at 564. See also Civil Code, art. 1397 (which provides that “the action for the annulment of contracts may be instituted by all who are thereby obliged principally or subsidiarily”).

[28] Agan, Jr. v. Phil. International Air Terminals Co., Inc. (PIATCO), G.R. No. 155001, 402 SCRA 612, May 5, 2003; Subido v. Ozaeta, G.R. No. 1631, 80 Phil. 383, Feb. 27, 1948; Gonzales v. Hechanova, G.R. No. 21897, 9 SCRA 230, Oct. 22, 1963; Bugnay Construction and Development Co. v. Laron, G.R. No. 79983, 176 SCRA 240, Aug. 10, 1989. See also Miguel v. Zulueta, G.R. No. 19869, Apr. 30, 1966; Maceda v. Macaraig, Jr., G.R. No. 88291, Jun. 8. 1993; Compare with House International Bldg. Tenants Association, Inc. v. Intermediate Appellate Court, G.R. No. 75287, 151 SCRA 703, Jun. 30, 1987 (where the the Court applied Article 1397 of the Civil Code in ruling that the petitioner was not the real party in interest; the ground for annulment in the case however was that entering into the assailed contract was ultra vires on the part of the purchasing private party, and not the selling government agency; Compare also with The Anti-Graft League of the Phils., Inc. v. San Juan, G.R. No. 97787, 260 SCRA 250, Aug. 1, 1996 (where the Court still discussed the issue of standing despite the fact that it already held, citing Morato, held that “petitoner’s standing should not even be made an issue…since…no constitutional question is actually involved.’” (Id. at 254) and explaining that the assailed contract would not involve a disbursement of public funds, thus “the first requirement…which would make this petition a taxpayer’s suit is absent,” (Id.) and holding that petitioner had “absolutely no cause of action, and consequently no locus standi.” (Id. at 254-55).

Parties whose standing have been recognized under this direct injury standard include (1) workers who would lose their employment (Agan, Jr., 402 SCRA 612); (2) contractors whose concession agreements or service contracts would be terminated (Id.); (3) a rice planter who assailed an executive issuance authorizing government importation of rice despite a statutory policy that “basic foods” should be purchased “directly from those tenants, farmers, growers, producers and landowners in the Philippines” (Gonzales v. Hechanova, G.R. No. 21897, 9 SCRA 230, 235, Oct. 22, 1963); and (4) a car owner who questioned a Letter of Instruction that required all motor vehicles to carry a pair of early warning devices (Agustin v. Edu, G.R. No. 49112, 88 SCRA 195, Feb. 2, 1979).

Parties whose standing were refused under the direct injury standard include (1) retired Commission on Audit (CoA) chairmen and commissioners as well as incumbent CoA officers and employees who assailed a CoA organizational restructuring plan which they claimed unlawfully demoted them and deprived them of their monthly representation and transportation allowances (There was no demotion, said the Court, because demotion involved the issuance of an appointment and no new appointments were issued to the petitioners. Further, the change in their allowances from monthly to reimbursable was not because of the restructuring plan) (Domingo v. Carague, G.R. No. 161065, Apr. 15, 2005, 456 SCRA 450); and (2) a political party which questioned a presidential declaration of a state of rebellion and the warrantless arrests allegedly effected pursuant to it, in which the Court held that the petitioner was “a juridical person not subject to arrest. Thus, it cannot claim to be threatened by a warrantless arrest. Nor [was] it alleged that its leaders, members, and supporters are being threatened with warrantless arrest and detention for the crime of rebellion.” (Laban ng Demokratikong Pilipino v. Department of Justice, G.R. No. 147810, 357 SCRA 756, 766, May 10, 2001 and reiterated in Sanlakas v. Executive Secretary, G.R. No. 159085, 421 SCRA 656, Feb. 3, 2004).

[45] Joya v. Presidential Commission on Good Government (PCGG), 225 SCRA 568, 576 (1993); See however, Lumba, supra note 16, at 732 (which posits that taxpayer’s standing is a subset of, and not an exception to, the direct injury standard: “Despite the difference in rulings, both Courts appear to have applied a common criterion to determine taxpayer’s standing – injury-in-fact. This is because a taxpayer suffers economic damage when money paid by him to the government to be used for lawful purposes is used in an unlawful way. To recall, injury-in-fact requires that the injury be personal, substantial and direct … Accordingly, a taxpayer’s suit can be said to be a subset of those public actions that require a showing of injury-in-fact for standing purposes.”) (However, it is my humble submission that the two views can be reconciled by thinking of the direct injury standard as that which would meet also the real-party-in-interest standard in private suits. In both citizen’s and taxpayer’s suits, the Court sometimes argues in terms of the real-party-in-interest standard, explaining that in such suits it is the people who are the real parties in interest, and any citizen or taxpayer may bring the suit as a representative of his or her class.

[47] Const. art III, §7 (which provides that “the right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law”).

[48] Legaspi, 150 SCRA 530. Under this constitutional right to information, citizens have been granted standing in suits to compel (1) the Civil Service Commission to furnish information on the civil service eligibilities of some government employees (Id.); (2) the Presidential Commission on Good Government (PCGG) to “make public any and all negotiations and agreements pertaining to PCGG’s task of recovering the Marcoses’ ill-gotten wealth” (Chavez v. PCGG, G.R. No. 130716, 299 SCRA 744, 750, Dec. 9, 1998); and (3) the publication “in the Official Gazette of various presidential decrees, letters of instructions, general orders, proclamations, executive orders, letters of implementation and administrative orders.” See Tañada v. Tuvera, G.R. No. 63915, 136 SCRA 27, 34, Apr. 24, 1985.

[51]Compare with Province of Tayabas v. Perez, G.R. No. 35364, 56 Phil 257, Oct. 29, 1931 (which Pascual v. Secretary of Works and Communications, G.R. No. 10405, Dec. 29, 1960, cites as authority for recognizing taxpayer standing, explaining that it was a case “involving the expropriation of land by the Province of Tayabas, two (2) taxpayers thereof were allowed to intervene for the purpose of contesting the price being paid to the owner thereof, as unduly exhorbitant.” (110 Phil. 331, 345) It is important to note that the Court in that case was confronted only with the question of the timeliness of the intervention: the sufficiency of the intervenors’ interest to intervene was not in issue, and the Court even grouped the intervenors “together with any other person who may have a legal interest in the matter in litigation”).

[63] See, e.g., Agan, Jr. 402 SCRA 612 (where the legality of government concession agreements granting to a private party the franchise to operate and maintain an international airport was questioned and legislator standing was granted because the “contracts create obligations on the part of the government … to disburse public funds without prior congressional appropriations,” thus “Petitioners … are prejudiced qua legislators, since the contractual provisions requiring the government to incur expenditures without appropriations also operate as limitations upon the exclusive power and prerogative of Congress over the public purse.”) (Id., at 684 (Panganiban, J., Separate Opinion)).

[64] See, e.g. Suplico v. President Gloria Macapagal-Arroyo, G.R. No. 159185, 421 SCRA 656, Feb. 3, 2004 (where the Court recognized the standing of the representatives who questioned the constitutionality of presidential issuances declaring a state or rebellion and calling out the Armed Forces to suppress it).

[65] Tolentino v. Comelec, G.R. No. 34150, 41 SCRA 702, Oct. 16, 1971 (which was a prohibition petition filed by a Senator to restrain the Comelec from holding a plebiscite, called by a Constitutional Convention, where a constitutional amendment would be proposed for ratification).

[67] Peralta v. Comelec, G.R. No. 47771, 82 SCRA 30, 83, Mar. 11, 1978 (Fernando, J., concurring on the whole but dissenting in part); compare with Lozada v. Comelec, G.R. No. 59068, 120 SCRA 337, Jan. 27, 1983 (where the Court held that “As voters, neither have petitioners the requisite interest or personality to qualify them to maintain and prosecute the present petition. … Petitioners’ standing to sue may not be predicated upon an interest of the kind alleged here, which is held in common by all members of the public because of the necessarily abstract nature of the injury supposedly shared by all citizens.”) (Id. at 341-42).

[80] Id. at 863-64. “As respondents, specifically, the Provincial Governor, are in duty bound not only to observe, but even to enforce the law, they may be properly compelled by mandamus to remove or rectify an unlawful act if to do so is within their official competence, at the instance of a taxpayer … where the question is one of public right and the object of the mandamus is to procure the enforcement of a public duty which, in this case, is the observance of the law, the relator need not show that he has any legal or special interest in the result of the proceeding. It is sufficient that he is interested as a citizen in having the laws executed and the duty in question enforced, even though he may have no exclusive right or interest to be protected.”

[81] The application for mandamus to compel the respondent public officials to eject foreigners from their public-market stalls was denied because there was “no pretense that [the petitioner was] an applicant for any stall or booth in the particular market … nor [was] he the representative of any such applicant, or any association of persons who are deprived of their right to occupy stall in said market.” (Id. at 152-53); This ruling was reiterated in Francisco, Jr. v. Fernando (G.R. No. 166501, 507 SCRA 173, Nov. 16, 2006), where the Court explained that a “citizen can raise a constitutional question only when (1) he can show that he has personally suffered some actual or threatened injury because of the allegedly illegal conduct of the government; (2) the injury is fairly traceable to the challenged action; and (3) a favorable action will likely redress the injury.” (Id. at 177); see also Justice Mendoza’s separate opinion in Integrated Bar of the Phils. v. Zamora, G.R. No. 141284, 338 SCRA 81, 138, Aug. 15, 2000 (hereinafter “IBP”).

[83] See Rules of Court, Rule 65, §3 (which provides that “Petition for mandamus. When any tribunal, corporation, board, officer or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes another from the use and enjoyment of a right or office to which such other is entitled, and there is no other plain, speedy and adequate remedy in the ordinary course of law, the person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certa

GUARDING THE GUARDIANS: ADDRESSING THE POST-1987 IMBALANCE OF PRESIDENTIAL POWER AND JUDICIAL REVIEW*

“Judicial review, like most things in life, is double-edged. In our political life, it can cut both ways: it can protect human rights, but it can also prevent social reforms. With its new found strength and its expanded power, the judiciary is no longer the “least dangerous branch of our government”…. [I]t may yet evolve to be the most dangerous branch.”

“[I]t is relevant to note the gap that exists between the President’s paper powers and his real powers. … Subtle shifts take place in the centers of real power that do not show in the face of the Constitution.”

“The President’s greatest and perhaps most desperate check on the judiciary is to ignore it. In a famous fictional account, President Andrew Jackson ordered: ‘John Marshall has made his decision, now let him enforce it!’ It is said that the judiciary wields neither purse nor sword, and its sole means of enforcing decisions lies in its moral authority. Perhaps we should allow the President to confront a court that has lost it.”

I wrote in the Philippine Law Journal in 2009, not long after the expansive rulemaking power was launched by Chief Justice Reynato Puno in 2007 before a grateful nation:

The glare from the halo surrounding these great achievements may well overly dazzle observers and condone their glossing over constitutional nuances given the great public trust the Court presently enjoys. All power is susceptible to corruption and misuse, however. A successor Chief Justice of lesser scholarship and integrity could very well employ the same rulemaking power to preempt judicial review involving certain minorities stigmatized by some sectors or frame an extreme caricature of the right to privacy to protect a political patron as has been attempted in prior legislative and other investigations.[4]

In the mere two years since, the political context of discussions on judicial power has completely reversed. The checks against the Presidency added in the 1987 Constitution to ensure that there would never be another Marcos are currently directed at President Benigno “Noynoy” Aquino III, son of Marcos’s political nemeses. Instead of a reviled President Gloria Macapagal-Arroyo contrasted with a beloved Chief Justice Puno, one has a popular President Aquino contrasted with an increasingly distrusted Chief Justice Reynato Corona. The Court has been labeled by some as the “Arroyo Court”, with all 15 Justices appointed by President Arroyo at one point.

A young lawyer who grew up in the aftermath of the Edsa Revolution and entered law school shortly after the Edsa II protests that led to President Joseph Estrada’s resignation may well lose his moorings given such a cataclysmic change. I wrote my initial reaction to Chief Justice Corona’s impeachment, the first of a Philippine jurist:

Hilario Davide Jr., singlehandedly holding the nation together through sheer integrity, remains my image of a chief justice. I walked to Edsa with the Class of 2001, listened to him speak at my graduation then and, with the greatest of pride, entered his alma mater, the UP College of Law. This image broadened to include Justice Antonio Carpio’s stand against a sham people’s initiative for Charter change and Chief Justice Reynato Puno’s rallying the nation against extrajudicial killings. Thus, the so-called assault on the Supreme Court comes as a visceral blow. Natalie Portman almost whispers, “So this is how liberty dies… with thunderous applause.”[5]

This article is a twofold record of my thoughts on judicial review since entering the UP College of Law, thoughts that have evolved since my initial articles. First, this article surveys the scope of judicial power. Filipino lawyers take for granted that this power was intentionally strengthened in our post-martial law constitution, but few acknowledge its actual expansiveness in practice, far beyond even judicial review’s traditional case and controversy restraint.[6] Second, this article surveys the scope of presidential power relative to judicial review. Although there are narrow areas where the President enjoys deference to his actions, constitutional design generally exposes his every action to a judicial labeling of grave abuse of discretion.[7] In surveying presidential power, one must recognize the many key doctrinal developments in the last decade, many spurred by former President Arroyo’s controversial acts. These developments have not, as a whole, received the same attention in the academe given to doctrinal developments in the judiciary and I recall Professor Laurence Tribe’s admonition that Constitutional Law courses sometimes focus overly on the Supreme Court to the detriment of understanding the Presidency and Congress. One must recall with respect to the political branches, lacking an organized system of jurisprudence to document their thoughts:

The Constitution was an extraordinary document. But a document is only a document, and what the Constitution ‘really’ meant – i.e., meant in practice – only practice could disclose.[8]

This article concludes that there is an imbalance to the point that a popular president may find himself stymied by a Supreme Court allegedly using judicial power for partisan ends. The citizenry, particularly the media and the academe who are crucial in communicating constitutional interpretation to them, must keep aware of this imbalance and ensure that the expanded judicial power is deployed in accordance with their wishes instead of hamstringing their popularly elected leaders.

I. An Overview of the “Arroyo Court’s” Recent Actions

The interplay between President Aquino and Chief Justice Corona provides a vivid backdrop for this discussion. The story begins with President Aquino’s landslide victory after the May 10, 2010 elections, “a wave of hope and nostalgia that began with an emotional tsunami during the long 8-hour funeral procession of his mother [in 2009].”[9] President Aquino’s term began on June 30.[10]

On May 17, however, then Chief Justice Puno compulsorily retired.[11] Two days after the elections, on May 12, then President Arroyo appointed then Justice Corona as Puno’s successor. Corona previously served as Arroyo’s chief of staff, spokesman and acting executive secretary. Arroyo, by then, had already appointed a majority of the Court.

The appointment was sharply criticized as an unconstitutional midnight appointment and the highly respected Senior Associate Justice Antonio Carpio and Justice Conchita Carpio-Morales both publicly opined that President Arroyo had no power to appoint Puno’s successor.[12] The opinion of Fr. Joaquin Bernas, SJ, was prominently cited:

[A]ny person who accepted the post of Chief Justice from Ms Arroyo would open himself or herself to impeachment by the next Congress.[13]

Ahead of the May 10 elections, however, the Supreme Court ruled that President Arroyo was entitled to appoint the next chief justice, arguing in a stunning reversal of the tradition against midnight appointments that the provision requiring a Supreme Court vacancy to be filled within 90 days trumped the ban on appointments by the president two months before the elections.[14] (Fr. Bernas has since revised his opinion in line with the Court’s decision.) President Aquino publicly refused to recognize Corona’s appointment and refused to be sworn in by him, eventually taking his oath before Justice Carpio-Morales, who prominently dissented in De Castro v. Judicial and Bar Council.[15]

The Court soon set several stumbling blocks in the path of President Aquino and his campaign crusade against corruption primarily directed against former President Arroyo. The Court struck down Aquino’s first executive order creating a Philippine Truth Commission to investigate corruption during the Arroyo administration. Of all possible reasons, the decision was anchored on one of the most incredible, most ridiculous possible ground, the human rights doctrine of equal protection:

The equal protection of the laws clause of the Constitution allows classification. … A law is not invalid because of simple inequality. The very idea of classification is that of inequality, so that it goes without saying that the mere fact of inequality in no manner determines the matter of constitutionality. All that is required of a valid classification is that it be reasonable, which means that the classification should be based on substantial distinctions which make for real differences, that it must be germane to the purpose of the law; that it must not be limited to existing conditions only; and that it must apply equally to each member of the class. This Court has held that the standard is satisfied if the classification or distinction is based on a reasonable foundation or rational basis and is not palpably arbitrary.

Applying these precepts to this case, Executive Order No. 1 should be struck down as violative of the equal protection clause. The clear mandate of the envisioned truth commission is to investigate and find out the truth “concerning the reported cases of graft and corruption during the previous administration” only. The intent to single out the previous administration is plain, patent and manifest.[16]

The disconnect in Biraogo must be apparent to a freshman Constitutional Law student. The decision read like a textbook discussion of the rational basis test but, in a subterfuge in plain sight, applied an exacting strict scrutiny analysis appropriate for a classification based on race or religion. I criticized Biraogo as establishing allegedly corrupt government officials as a new suspect class in Philippine jurisprudence and necessarily labeling former President Arroyo a human rights victim:

“Will you teach your children that Gloria Macapagal-Arroyo is a human rights victim?” …

The brazen intellectual dishonesty in the Truth Commission decision must shock you. Equal protection, being a human rights doctrine, is strictly applied only when “suspect classifications” are involved: race, religion and gender. Classic victims of discrimination in law and common sense include the Cordillera tribesman, the Muslim and the working woman. The Court added the overseas Filipino worker to modernize this list.

Outside “suspect classifications,” equal protection is applied with far less strictness than in the Truth Commission decision….

The Truth Commission decision misrepresented the equal protection doctrine so suavely it even appeared helpful, advising to add a simple “s” so the order covers all past administrations. The entire nation unfairly ridiculed President Aquino’s legal team as lightweights who drafted an order so obviously flawed. The entire nation unwittingly agreed that Arroyo is a human rights victim.[17]

Biraogo, however, was largely, albeit, begrudgingly accepted. The loud outcry was not against the tragic blow dealt to human rights jurisprudence, but President Aquino’s allegedly lightweight legal team. Senator Francis “Chiz” Escudero publicly suggested that an “s” be added to change “past administration” to “past administrations” to cure the alleged defect.[18] The unkindest cut of all came from Senator Joker Arroyo, who had served Aquino’s own mother:

Arroyo then noted that President Corazon Aquino had a more high-powered team – notably former Senate President Jovito Salonga, former Sen. Rene Saguisag, former Rep. Teodoro Locsin, Jun Factoran and Dodo Sarmiento.

“All of them were trained in Harvard and we had zero problems with the Supreme Court because we do our homework,” Arroyo said.

He said that Cory Aquino’s EO 1, which created the Presidential Commission on Good Government, was approved without corrections from the draft of Salonga.[19]

Judicial supremacy thus appeared unshakeable in the public view, unless challenged by an all-Harvard Law team led by a legend such as former Senate President Jovito Salonga, also a holder of a Yale Doctor of Laws degree.

Senator Arroyo criticized President Aquino’s legal team for “racking up four cases before the Supreme Court in just 46 days in power,”[20] with each of Aquino’s first three executive orders challenged. Aquino’s supporters, however, pointed to a lengthening string of controversial decisions involving former President Arroyo allegedly tainted by partisan interests, whose subjects included midnight appointments, the creation of a new congressional district allegedly for Arroyo’s son’s candidacy, constitutional amendments, virtual martial law, abuse of executive privilege, bypass of the Commission on Appointments and anomalous government contracts.[21]

Perhaps the most outlandish case involved the exoneration of an Arroyo-appointed Justice from plagiarism charges even after several recognized public international law scholars not only wrote the Court about the plagiarism but claimed their articles were cited to support the opposite propositions.[22] The plagiarized decision, sadly, ruled against “comfort women” forced by the Japanese army to provide sexual services during World War II.[23] The Court also disciplined a majority of the University of the Philippines College of Law faculty for its vocal opposition in the matter.[24] Law students across the country ridiculed the Court’s definition of plagiarism as necessitating intent and the “Microsoft Word” defense:

[P]lagiarism is essentially a form of fraud where intent to deceive is inherent. …

[P]lagiarism presupposes intent and a deliberate, conscious effort to steal another’s work and pass it off as one’s own.[25]

[T]he Microsoft word program does not have a function that raises an alarm when original materials are cut up or pruned. The portions that remain simply blend in with the rest of the manuscript, adjusting the footnote number and removing any clue that what should stick together had just been severed.[26]

Justice Del Castillo failed to attribute to the foreign authors materials that he lifted from their works and used in writing the decision for the Court in the Vinuya case. But, as the Court said, the evidence as found by its Ethics Committee shows that the attribution to these authors appeared in the beginning drafts of the decision. Unfortunately, as testified to by a highly qualified and experienced court-employed researcher, she accidentally deleted the same at the time she was cleaning up the final draft. The Court believed her since, among other reasons, she had no motive for omitting the attribution. The foreign authors concerned, like the dozens of other sources she cited in her research, had high reputations in international law.[27]

The resolution’s dispositive portion even provided:

[T]he Court … DIRECTS the Clerk of Court to acquire the necessary software for use by the Court that can prevent future lapses in citations and attributions.[28]

Attending a family reunion after Vinuya, I found myself at a table of 12-year olds asking him why the Supreme Court had ruled that they could now copy for their school term papers.

The Court’s lowest point came when it issued a temporary restraining order grounded on the right to travel allowing former President Arroyo and her husband to leave the country, allegedly before charges would be brought against them. The order was odd in that it did the opposite of preserving the status quo and was issued ex parte without allowing the government to respond. Chief Justice Corona was later accused of abusing his administrative powers to railroad the order.[29] Although many voiced the need to respect the order to maintain the rule of law, Dean Raul Pangalangan opined in the Inquirer’s front page that the false human rights issue should be pierced and the actual political issue should be recognized:

It would be the supreme irony to allow GMA (Gloria Macapagal-Aroyo) to invoke our most sacred human rights protections to escape justice. That would be her supreme, final perversion of our democratic institutions. While countless voices have correctly quoted human rights law, our democracy must recognize GMA’s pleas as a political, not human rights, issue.

Our Bill of Rights is our democracy’s greatest triumph. It is “counter-majoritarian”; it empowers the weakest member of our society to stand against the most powerful members. Wind and sunshine may enter the humblest hovel, but the king must first knock at the door.

The Bill of Rights is applied by the courts with very strict scrutiny in favor of the disadvantaged for whom “those political processes ordinarily to be relied upon to protect minorities” historically do not work: From the Maguindanao massacre victims to millions of starving children who might be fed and clothed with the money from the fertilizer and ZTE scams.

That is why we must pierce legal rhetoric to see what is really at stake.[30]

President Aquino’s Secretary of Justice Leila de Lima refused to honor the order and had the Arroyos blocked from boarding planes at the airport. Charges and an arrest warrant were soon brought against Arroyo[31] and impeachment was initiated against Corona in less than a day. One headline story opened:

Allies in the House of Representatives, seeking to appease an angry President Benigno Aquino III, on Monday swiftly impeached Chief Justice Renato Corona for interfering in the prosecution of former President and now Pampanga Representative Gloria Macapagal-Arroyo.[32]

In attempting to resist the Supreme Court, thus, President Aquino deployed the heavy artillery of impeachment after every other weapon in the arsenal apparently failed. It would later appear that even this firepower brought to bear was insufficient to erase the blot of De Castro v. Judicial and Bar Council and Biraogo v. Philippine Truth Commission from legal reasoning.

II. The Greatly Expanded Philippine Power of Judicial Review

A. The Expanded Certiorari Power

The Philippine Supreme Court has repeatedly and consistently asserted:

The major difference between the judicial power of the Philippine Supreme Court and that of the U.S. Supreme Court is that while the power of judicial review is only impliedly granted to the U.S. Supreme Court and is discretionary in nature, that granted to the Philippine Supreme Court and lower courts, as expressly provided for in the Constitution, is not just a power but also a duty, and it was given an expanded definitionto include the power to correct any grave abuse of discretion on the part of any government branch or instrumentality. (emphasis in the original)[33]

This excerpt from the landmark cases Francisco v. House of Representatives and Gutierrez v. House of Representatives Committee on Justice may well be the Philippine Court’s Marbury v. Madison[34](or perhaps its Aaron v. Cooper),[35]an ex cathedra pronouncement on judicial review made when intervening in an impeachment, that most political of the political branches’ powers. Francisco outlines the 1987 Constitution’s design. First, judicial review has been made explicit and is not a mere product of jurisprudence. Second, it is not limited to determining whether the Constitution has been breached; the Court is further empowered “to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government” even where a branch of government has acted within its power. Third, judicial review is denominated as a duty, a word that the Court cites emphatically when it is determined to rule on an issue.

It is well established that this outline is intentional constitutional design and the Constitutional Commission intentionally intended to strengthen the Court as a foil against another potential Marcos. What is less clear to our generation of lawyers who inherited this post-EDSA legacy is the extent to which the “expanded certiorari” power has gone beyond the already broad scope it was envisioned to have.

B. Hypertextualism and the Political Question’s Death

The “expanded certiorari” power allows the Supreme Court to invalidate the act of a co-equal branch that is either invalid under the Constitution or is technically valid but deemed a grave abuse of discretion. It would follow that what is squarely within a branch’s discretion must be valid and beyond the Court’s scrutiny. This follows from Marbury itself; before Chief Justice John Marshall wrote that “It is emphatically the province and duty of the judicial department to say what the law is,”[36] he wrote in a preceding section that:

[W]here the heads of departments … merely … execute the will of the President, or rather to act in cases in which the executive professes a constitutional or legal discretion, nothing can be more perfectly clear than that their acts are only politically examinable. But where a specific duty is assigned by law, and individual rights depend upon the performance of that duty, it seems equally clear that the individual who considers himself injured, has a right to resort to the laws of his country for a remedy.[37]

In practice, however, this framework has no relevance to Philippine judicial review.

The political question doctrine determines whether a matter is “only politically examinable” or properly subject to judicial review and this doctrine has been pronounced dead under the 1987 Constitution, particularly with the “expanded certiorari” power thought to drastically restrict if not practically bar this doctrine’s application.

Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for questioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.[39]

textual: where there “is found a textually demonstrable constitutional commitment of the issue to a political department”

functional: where there is “a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion”

prudential: where there is “the impossibility of a court’s undertaking independent resolution without expressing lack of respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question”[40]

First, Fr. Bernas has pronounced the prudential question extinct because judicial review is denominated a “duty” by the 1987 Constitution[41] and this has caused the Court to state: “Justices cannot abandon their constitutional duties just because their action may start, if not precipitate, a crisis.”[42] This attitude is a conscious shift from Marcos-era invocations of the political doctrine that matches the textual shift embodied in the “expanded certiorari” power.

Second, the textual and the functional questions are ultimately choked off by the 1987 Constitution’s sheer length and the present extreme textualist mindset in Philippine constitutional law. The textual question arises when the Constitution’s text assigns an issue’s resolution to a political branch. The functional question arises when the Constitution provides no rules in its text to govern an issue and leaves its resolution to a political branch with greater institutional competence to resolve it using its discretion.[43] In the face of either question, one readily finds a textual anchor in the torrents of text contained in the 1987 Constitution and argues that the text must be interpreted in an exercise of judicial review.[44]

Integrated Bar of the Philippines v. Zamora[45]exemplifies the extreme textualist approach. President Joseph Estrada’s deployment of Marines in shopping malls to augment policemen and enhance their visibility was challenged as unconstitutional. Instead of simply holding that these deployments fell squarely within the President’s discretion as Commander-in-Chief, the Court asserted jurisdiction over the matter and found that there was no evidence that the President used his powers over the military arbitrarily, the “expanded certiorari” power’s framework. Dean Pacifico Agabin jokingly refers to “the power to call out such armed forces to prevent or suppress lawless violence in the central business district,”[46] summing up the textual trap the Court laid for itself when it went further and ruled on whether the “lawless violence, invasion or rebellion” qualifiers to the President’s power to declare martial law apply to his deployment of the armed forces. More recently, Province of North Cotabato v. GRP Peace Panel[47]ruled that the President had the power to negotiate peace agreements with rebels and did so by textually tying this implied power to the explicit power to the Commander-in-Chief power to “prevent and suppress rebellion and lawless violence.”[48] This technical approach is distinguished from a broader approach in Marcos v. Manglapus.[49]

IBP v. Zamora’s doctrine, birthed by textualist acrobatics, carried far beyond its benign factual milieu to Lacson v. Perez[50]and Sanlakas v. Executive Secretary,[51]which dealt with the “state of rebellion” declared during the “EDSA III” demonstrations in May 2001 and the takeover by soldiers in July 2003 of the Oakwood Premiere apartments in Makati for use as a base to air grievances against President Arroyo, and eventually to David v. Macapagal-Arroyo,[52]which dealt with the “state of national emergency” and alleged virtual declaration of martial law in February 2006, after the discovery of a suspected plot by soldiers who participated in the “Oakwood mutiny” and other elements who sought to unseat President Arroyo. This tortuous but increasingly ominous line of cases eventually discussed the difference between a “state of rebellion” and a “state of national emergency” and how the latter might involve an “awesome power” but the latter did not, and detailed a “sequence of graduated powers.” David in effect deemed the two terms instances of calling out the armed forces to suppress lawless violence, with different collars, but with a better appreciation of a discussion that began with “the power to call out such armed forces to prevent or suppress lawless violence in the central business district.”

The David line of cases revolved around the phrase “lawless violence” despite the weighty concepts of Commander-in-Chief and martial law being defined and illustrates how Philippine jurisprudence is developed by anchoring onto snippets of constitutional text. Philippine jurisprudence has produced more curious textual anchors; for example, Duncan Ass’n of Detailman-PTGWO v. Glaxo-Wellcome Philippines, Inc.[53]emphasized a “right of enterprises to reasonable returns on investments, and to expansion and growth”[54] while deciding whether an employer could contractually restrict an employee’s right to marry and prohibit marriage to a competitor’s employee. It takes only a modicum of creativity to coax a textual anchor out of the 1987 Constitution and when this is achieved, one may readily assert the need to interpret the textual standard and find a “not truly” political question as opposed to a “truly” political question, using Francisco’s framework.

To cite another freshman syllabus example of hypertextualism at work, Cayetano v. Monsod[55]ruled that lawyer Christian Monsod’s experience in various banks and non-governmental organizations met the requirement that a Commission on Elections commissioner should have been “engaged in the practice of law for at least ten years.”[56] Instead of simply ruling that the appointment lay within the President’s discretion as appointing authority, the Court delivered an elaborate dissection of the phrase “practice of law,” complete with quotes from magazine articles and strained explanations of how a World Bank lawyer encounters the laws of other countries and a National Movement for Free Elections chair encounters election law issues.[57]

“[O]ld textualism is based on the incorrect view of linguistics and jurisprudence by which the text can be clear without examining its context. Judge Learned Hand was right in saying, ‘There is no surer way to misread any document than to read it literally.’”[58] The extreme form of textualism is contrary to the South African approach of reasonableness which does not treat constitutional phrases as absolutes and instead intervenes against government acts only when they are highly unreasonable in their constitution’s context. The landmark decision Soobramoney v. Minister of Health (Kwazulu-Natal)[59]put to test the constitutional provisions “No one may be refused emergency medical treatment,” “Everyone has the right to have access to health care services” and “Everyone has the right to life” when a man in the final stages of severe renal failure challenged a government hospital’s refusal to allocate dialysis treatment resources to him. The South African Constitutional Court addressed the issue directly instead of engaging in interpretive textual acrobatics or creating fine factual distinctions. Without diminishing the provisions’ mandatory character, the Court recognized that South Africa had scarce health care resources and that the hospital’s policy for allocating these was not unreasonable, even if they resulted in the petitioner being denied access to them.

C. Expanded Standing Rules

Under the “expanded certiorari” power, thus, the Court can review practically any question presented to it. In addition, the question may potentially be brought by any party, the final relaxation of the classic case and controversy constraint on judicial review. The now familiar language of Kilosbayan v. Guingona[60] cast this traditional constitutional constraint as a mere “technicality:”

A party’s standing before this Court is a procedural technicality which it may, in the exercise of its discretion, set aside in view of the importance of the issues raised. In the landmark Emergency Powers Cases, this Court brushed aside this technicality because “the transcendental importance to the public of these cases demands that they be settled promptly and definitely, brushing aside, if we must, technicalities of procedure.”[61]

Guingona was decided by a slim majority and practically reversed the following year in Kilosbayan v. Morato.[62] Parenthetically, Court has shied away from this exaggerated formulation. For example, the 2011 decision Bayan Muna v. Romulo[63]restated:

The Court may relax the standing requirements and allow a suit to prosper even where there is no direct injury to the party claiming the right of judicial review.[64]

The rule on locus standi is not a plain procedural rule but a constitutional requirement derived from Section 1, Article VIII of the Constitution, which mandates courts of justice to settle only “actual controversies involving rights which are legally demandable and enforceable.” As stated in Kilosbayan, Incorporated v. Guingona, Jr., viz.:

x x x [C]ourts are neither free to decide all kinds of cases dumped into their laps nor are they free to open their doors to all parties or entities claiming a grievance. The rationale for this constitutional requirement of locus standi is by no means trifle. It is intended “to assure a vigorous adversary presentation of the case, and, perhaps more importantly to warrant the judiciary’s overruling the determination of a coordinate, democratically elected organ of government.” It thus goes to the very essence of representative democracies….

A lesser but not insignificant reason for screening the standing of persons who desire to litigate constitutional issues is economic in character. Given the sparseness of our resources, the capacity of courts to render efficient judicial service to our people is severely limited. For courts to indiscriminately open their doors to all types of suits and suitors is for them to unduly overburden their dockets, and ultimately render themselves ineffective dispensers of justice. To be sure, this is an evil that clearly confronts our judiciary today.[66]

Guingona’s doctrine featured prominently in several Davide Court decisions such as IBP v. Zamora regarding the deployment of marines to augment police, Bayan v. Zamora[67]regarding the Visiting Forces Agreement (VFA) with the United States, Cruz v. Secretary of Environment and Natural Resources[68]regarding the Indigenous Peoples Rights Act of 1997 and Lim v. Executive Secretary[69]regarding the Balikatan military exercises. Parenthetically, it may be better phrasing to admit in such decisions that standing is being analyzed with liberality rather than dismissing standing as a mere technicality and having to deal with questions such as advisory opinions.

The Court has recognized liberality in standing in specific areas. It has reiterated that “when the question is one of public right … the people are regarded as the real party in interest and the relator at whose instigation the proceedings are instituted need not show that he has any legal or special interest in the result, it being sufficient to show that he is a citizen….”[70] Further, the Court has explicitly stated that it treats standing liberally in taxpayers’ suits,[71] although some recent decisions do deny taxpayer standing on the ground that there is no direct expenditure questioned. In addition, there are narrow circumstances in which the Constitution explicitly grants standing to any citizen, most prominently when one questions the factual bases for a declaration of martial law or suspension of the writ of habeas corpus.[72]

Legislators are another recognized category:

To the extent that the powers of Congress are impaired, so is the power of each member thereof, since his office confers a right to participate in the exercise of the powers of that institution.

An act of the Executive which injures the institution of Congress causes a derivative but nonetheless substantial injury, which can be questioned by a member of Congress.[73]

The Court noted in David, however, that being a former legislator confers no special standing.[74] Moreover, where the act subject of the petition impairs no prerogative of Congress, legislators may claim no standing to sue.[75]

Oposa v. Factoran,[76]penned by then Justice Hilario Davide, Jr., granted the most extreme liberality in standing by recognizing unborn petitioners:

Petitioners minors assert that they represent their generation as well as generations yet unborn. We find no difficulty in ruling that they can, for themselves, for others of their generation and for the succeeding generations, file a class suit. Their personality to sue in behalf of the succeeding generations can only be based on the concept of intergenerational responsibility insofar as the right to a balanced and healthful ecology is concerned. Such a right, as hereinafter expounded, considers the “rhythm and harmony of nature.”[77]

The Court codified Oposa’s extremely liberal approach to standing in environmental claims in its Rules of Procedure in Environmental Cases:

SEC. 4. Who may file.—Any real party in interest, including the government and juridical entities authorized by law, may file a civil action involving the enforcement or violation of any environmental law.

SEC. 5. Citizen suit.—Any Filipino citizen in representation of others, including minors or generations yet unborn, may file an action to enforce rights or obligations under environmental laws.[78]

Oposa’s emphasis on intergenerational responsibility was also reiterated in Metropolitan Manila Development Authority v. Concerned Citizens of Manila Bay,[79]which Justice Presbitero Velasco ended with this exhortation:

So it was that in Oposa v. Factoran, Jr. the Court stated that the right to a balanced and healthful ecology need not even be written in the Constitution for it is assumed, like other civil and political rights guaranteed in the Bill of Rights, to exist from the inception of mankind and it is an issue of transcendental importance with intergenerational implications. Even assuming the absence of a categorical legal provision specifically prodding petitioners to clean up the bay, they and the men and women representing them cannot escape their obligation to future generations of Filipinos to keep the waters of the Manila Bay clean and clear as humanly as possible. Anything less would be a betrayal of the trust reposed in them.[80]

MMDA v. Concerned Citizens represents the modern, refined form of an Oposa constitutional claim regarding the environment. The claim was anchored on “[r]espondents’ constitutional right to life, health, and a balanced ecology”[81] but specific statutory as well as international law obligations were also cited as bases to compel the Department of Environment and Natural Resources and other specified agencies to “clean up and rehabilitate Manila Bay and restore its waters to SB classification to make it fit for swimming, skin-diving and other forms of contact recreation.”[82] This follows from the note in Justice Florentino Feliciano’s Oposa concurring opinion that the petitioners should have asserted a more specific legal right. Contrast MMDA v. Concerned Citizens with the earlier decision Henares v. LTFRB,[83]which cited Oposa and featured a claim that the constitutional “right to clean air”[84] compelled the government to require the use of alternative fuel. The Court delivered a stirring opinion recognizing the petitioners’ standing, reemphasizing Oposa and reading the numerous environmental statistics presented into the anthologies, but ultimately dismissing the petition on the merits and asking the petitioners to cite a specific statutory duty owed or to direct their claims to Congress.[85]

Finally, extending the transcendental importance doctrine and these related rules, Province of North Cotabato v. GRP Peace Panel[86]ended its discussion of standing, mootness and other rules by stating that the Court would render a decision on a controversial Memorandum of Agreement on the Ancestral Domain Aspect of the Tripoli Agreement on Peace of 2001 “to formulate controlling principles to guide the bench, the bar, the public and, most especially, the government.”[87] Such a rationale arguably borders on judicial legislation, particularly if these principles are dicta enunciated outside the scope of judicial review. Sarcastically, one may accuse the Court of taking the transcendental importance doctrine even further to a doctrine of liberality when it is of a mood to lecture.

Note, finally that the Court on several occasions has asserted a liberal stance on standing but declined a resolution on the merits by invoking an aspect of the case and controversy requirement, such as mootness, ripeness, or lis mota.[88] This was most prominent in the recent ruling of mootness in Fortun v. Macapagal-Arroyo,[89]regarding a challenge to a declaration of martial law in Maguindanao following the alleged murder of 57 women and journalists by that province’s Ampatuan political clan and alleged subsequent mobilization of thousands of the clan’s armed followers. The Court, two years after the petition was brought, declined to rule on the martial law declaration’s constitutionality because former President Arroyo lifted it after only eight days. Fortun argued:

The problem in this case is that the President aborted the proclamation of martial law and the suspension of the privilege of the writ of habeas corpus in Maguindanao in just eight days. In a real sense, the proclamation and the suspension never took off. The Congress itself adjourned without touching the matter, it having become moot and academic.

Of course, the Court has in exceptional cases passed upon issues that ordinarily would have been regarded as moot. But the present cases do not present sufficient basis for the exercise of the power of judicial review. The proclamation of martial law and the suspension of the privilege of the writ of habeas corpus in this case, unlike similar Presidential acts in the late 60s and early 70s, appear more like saber-rattling than an actual deployment and arbitrary use of political power.[90]

Justice Carpio heavily criticized the Bickelian dodge, arguing:

Failing to determine the constitutionality of Proclamation No. 1959 by dismissing the cases on the ground of mootness sets a very dangerous precedent to the leaders of this country that they could easily impose martial law or suspend the writ without any factual or legal basis at all, and before this Court could review such declaration, they would simply lift the same and escape possible judicial rebuke.[91]

This was also prominent in Lacson v. Perez,[92]which declared petitions regarding President Arroyo’s declaration of a “state of rebellion” moot and academic (although this application of mootness was reversed in Sanlakas and David v. Macapagal-Arroyo;[93]the latter ruled on President Arroyo’s Proclamation 1017, which was assailed as a virtual declaration of martial law), and North Cotabato v. GRP Peace Panel which almost declared petitions assailing a Memorandum of Agreement regarding the Mindanao peace process moot by one vote. In addition to the traditional Bickelian escape devices relating to standing or case and controversy, Lacson also cited the Court’s lack of original jurisdiction over petitions for declaratory relief, Lim and Francisco v. Fernando[94]invoked the doctrine that the Court is not a trier of facts (to alleged foreign military operations and jaywalking, respectively),[95] while Tanada v. Angara[96]most prominently held that certain constitutional provisions are not meant to be self-executing (and thus enforceable in themselves). This author’s previous article detailed a number of these subtle dodges and how these simulate the political question doctrine when it is convenient to present a similar dog with a different collar.[97]

Note, incidentally, that there remain cases where the Court exercises its prerogative to a Bickelian dodge by finding a lack of standing. In 2010, for example, when militant organizations challenged the Human Security Act of 2007, the Court found that they faced neither an actual charge nor a credible threat of prosecution under the law and refused to accept alleged “tagging” and surveillance of these organizations as sufficient to grant standing.[98] More amusingly, Senior Associate Justice Carpio delivered a most powerful deadpan refusal in Paguia v. Office of the President,[99]where Alan Paguia was not only denied standing to assail former Chief Justice Davide’s appointment as an ambassador for being allegedly beyond the mandatory retirement age for Department of Foreign Affairs employees but reminded his suspension from the practice of law prohibited him from even bringing the suit.[100]Soriano v. Lista[101]similarly rejected citizen and taxpayer standing for a petitioner questioning the lack of Commission on Appointments confirmation of senior Coast Guard officers. The decision noted the Coast Guard is no longer technically part of the armed forces.[102]

[W] hile the Court has taken an increasingly liberal approach to the rule of locus standi, evolving from the stringent requirements of “personal injury” to the broader “transcendental importance” doctrine, such liberality is not to be abused. It is not an open invitation for the ignorant and the ignoble to file petitions that prove nothing but their cerebral deficit.

In the final scheme, judicial review is effective largely because it is not available simply at the behest of a partisan faction, but is exercised only to remedy a particular, concrete injury. When warranted by the presence of indispensible minimums for judicial review, this Court shall not shun the duty to resolve the constitutional challenge that may confront it.[103]

D. The 1987 Constitution’s Sheer Length

In addition to the political question’s practical nonexistence and extremely liberal standing rules, the Philippine hypertextualist mindset effectively expands the scope of judicial review when coupled with the sheer length of the 1987 Constitution.[104] This overabundance of text makes it easy to find a textual hook for just about any claim, and has allowed the Court to break new constitutional ground without, unlike the United States Supreme Court, having to first justify the very existence of the right it is enforcing[105] or pinpoint “judicially manageable standards” under Baker. The most prominent examples are all too familiar from a freshman’s Constitutional Law syllabus. Oposa upheld a constitutional “right to a balanced and healthful ecology” as well as the standing of unborn generations “based on the concept of intergenerational responsibility.”[106]Tecson v. Glaxo Wellcome Philippines, Inc.[107]recognized a constitutional “right to reasonable returns on investments and to expansion and growth.”[108] Other constitutional provisions have been interpreted to authorize the prohibition of monopolies that are against the public interest[109] and a “Filipino First Policy”[110] that allowed a Filipino bidder to match the offer of a foreign company. Indeed, in one early decision regarding the 1987 Constitution’s economic provisions, then Justice Artemio Panganiban found basis to emphatically state:

The shift from what was once highly discretionary into “judicially manageable” was most prominent in Francisco v. House, where the Court ruled on the validity of an impeachment complaint against its own Chief Justice, despite the argument that “[i]f the political question doctrine has no force where the Constitution has explicitly committed a power to a coordinate branch and where the need for finality is extreme, then it is surely dead.”[112] The Court held:

[T]he U.S. Federal Constitution simply provides that “the House of Representatives shall have the sole power of impeachment.” … No limitation whatsoever is given. Thus, the US Supreme Court concluded that there was a textually demonstrable constitutional commitment…. This reasoning does not hold with regard to impeachment power of the Philippine House of Representatives since our Constitution, as earlier enumerated, furnishes several provisions articulating how that “exclusive power” is to be exercised.[113]

Clearly, this assertion of judicial review does not arise purely from the expanded certiorari jurisdiction; it is also grounded on additional text.

The 1987 Constitution’s length also makes the context for applying the double standard of judicial review is radically different. This standard demands greater scrutiny when dealing with political and human rights as opposed to social and economic issues and was most recently emphasized by Justice Mendoza.[114] Paul Freund explained it as “set[ting] up a hierarchy of values within the due process clause.”[115] It is classically reflected in “Footnote 4”:

There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution….

It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation….

Nor do we inquire… whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.[116]

This standard is a guideline not a mandatory rule, and note that arguably the greatest United States decision, Brown v. Board of Education[117]on racial segregation, transformed that country’s social landscape. Nevertheless, the expanded social and economic provisions in the 1987 Constitution blur the traditional lines. This is most evident in Oposa and Henares with respect to the “right to a balanced and healthful ecology” and Manila Prince Hotel and Tanada v. Angara with respect to the Filipino First Policy and certain economic provisions. Are these political and economic issues where policy must be determined by majoritarian process and where “[s]ome play must be allowed for the joints of the machine”[118]? Or are these issues of fundamental constitutional rights subject to exacting scrutiny, taking Manila Prince Hotel’s statementthat “there is nothing so sacrosanct in any economic policy as to draw itself beyond judicial review when the Constitution is involved”[119]? Paradoxically, many issues may be resolved either way, and it is disastrous to lean too closely to either extreme, which is what happened in past decisions where an issue was characterized one-dimensionally.

One notes that provisions not phrased as constitutional rights may fall into this blurring standard as well. For example, when a petition in Lim v. Executive Secretary assailed alleged combat operations by American soldiers within the Philippines under the auspices of the VFA, the Solicitor General invoked the President’s broad discretion as Commander-in-Chief and in foreign affairs. The Court, however, on the premise that such alleged operations against “Abu Sayyaf bandits”[120] constituted a war, stated that the Constitution’s renunciation of “war as an instrument of national policy”[121] restricted the President’s discretion in this context. Hacienda Luisita Inc. v. Presidential Agrarian Reform Council[122]recognized a right “of farmers and regular farmworkers who are landless, to own directly or collectively the lands they till or, in the case of other farmworkers, to receive a just share of the fruits thereof,” given that the Constitution’s provisions on agrarian reform used the word “right,” and recognized this right as sufficient basis to test the constitutionality of a law that allowed stock distribution instead of actual land to farmers.[123]

Finally, it is a subtle point that the 1987 Constitution is infinitely longer than it actually is, because the Philippines “adopts the generally accepted principles of international law as part of the law of the land.”[124] Although this provision does not elevate customary international law to the same tier as constitutional provisions,[125] it does grant the Court the discretion to select which principles to declare as “generally accepted principles of international law” and then apply these with a reverence that brings them to near-constitutional status anyway. In a number of cases, the Court has cited international law principles to reinforce a constitutional right it has identified. For example, In re Sabio[126]restated the basis for the Philippine right to privacy from the familiar formulation in the landmark cases Ople v. Torres[127]and Morfe v. Mutuc:[128]

The meticulous regard we accord to these zones [of privacy] arises not only from our conviction that the right to privacy is a “constitutional right” and “the right most valued by civilized men,” but also from our adherence to the Universal Declaration of Human Rights which mandates that, “no one shall be subjected to arbitrary interference with his privacy” and “everyone has the right to the protection of the law against such interference or attacks.”[129]

Taken further, the doctrine of incorporation can and has been used to argue for the existence of new rights, beyond the already extensive constitutional text. Most prominently, a dissent in Echegaray v. Secretary of Justice,[130]regarding the first execution under the 1987 Constitution, proposed that the reimposed death penalty violated a newly-emerged norm of international law, notwithstanding that the Constitution explicitly gave Congress the option to restore this.[131] Recall Judge Bork’s admonition against “the international homogenization of constitutional law… accomplished only if the various national courts are willing to minimize the historical understanding of their own constitutions in favor of what they perceive as an international morality.”[132] Although reference to international law norms is explicitly authorized by the Constitution, the suggestion in a Supreme Court decision that an alleged international law norm might trump an explicit constitutional provision shows the allure (or at least its extreme point) of using international law in our modern jurisprudence.

International law norms have been most progressively recognized in human rights contexts. Government of Hong Kong v. Olalia[133]declared the UDHR as containing principles of customary international law, stating that: “The modern trend in public international law is the primacy placed on the worth of the individual person and the sanctity of human rights.”[134] The ICCPR has been cited on numerous occasions. As a further example, then Justice Puno’s separate opinion in Tecson v. COMELEC[135]argued that the Convention on the Rights of the Child prohibited discrimination on account of birth or other status, and that this treaty obligation prohibited discrimination of an illegitimate child for purposes of citizenship. The Court’s focus on these human rights contexts in international law complements its greater scope for judicial review in constitutional human rights contexts. The most expansive invocation was the first writ of amparo decision, which cited a UDHR formulation “right to life, liberty and security of person”[136] alongside Philippine constitution provisions.

Chief Justice Puno’s Tecson opinion, parenthetically, illustrates the blurred lines between political and human rights issues in today’s constitutional landscape. The Puno opinion framed the issue as one of discrimination against children by virtue of the circumstances of their birth. However, it acknowledged that the true issue was whether popular presidential candidate Fernando Poe, Jr. should be disqualified from the elections for not meeting the citizenship requirement in relation to the circumstances of his birth. The opinion concluded: “Whether respondent Fernando Poe, Jr. is qualified to run for President involves a constitutional issue but its political tone is no less dominant. … Given the indecisiveness of the votes of the members of this Court, the better policy approach is to let the people decide….”

E. The Now Dormant Rulemaking Power

The rulemaking power shatters the last unbroken link in judicial review’s chains.[137] This claimed power to promulgate rules to protect rights, even arguably substantive rules, removes the case and controversy requirement altogether, leaving the Court free to act even without any case before it, as was first and most prominently seen in the National Consultative Summit on Extrajudicial Killing and Enforced Disappearances in 2007. At this summit, then Chief Justice Puno announced:

[T]he paucity of power of the Judiciary in checking human rights violations was remedied by stretching its rule making prerogative. Article VIII, section 5 (5) empowers the Supreme Court to `promulgate rules concerning the protection and enforcement of constitutional rights x x x.’ …

In expanding the judicial rule making authority to enhance the protection and enforcement of constitutional rights, our Constitutional Commissioners were endowed with prophetic eyes. For two decades later, we would be bedeviled by extrajudicial killings and forced disappearances that would expose the frailties of our freedom, the inadequacy of our laws if not the inutility of our system of justice. Given these vulnerabilities, the Judiciary, on its part, has decided to unsheath its unused power to enact rules….[138]

With due respect to Chief Justice Puno, it is juvenile to believe that stray surplusage in the 1987 Constitution lay dormant for two decades then suddenly transformed the face of Philippine Constitutional Law at that landmark summit. Curiously, the burly protector does not visibly spring forth from the text of article VIII, section 5(5), or at least not until phrases from it are selectively quoted as they are to students today:

The Supreme Court shall have the following powers:

…

(5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the integrated bar, and legal assistance to the under-privileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court.

Nor was article VIII, section 5(5) cited as containing the rulemaking power in the first 20 years of its life. Its most prominent articulation during this period came in Echegaray where then Justice Puno highlighted not quite that section 5(5) created a new power but emphasized that the 1987 Constitution vested the power to promulgate court rules solely in the Supreme Court and it is no longer shared with Congress:

The rule making power of this Court was expanded. This Court for the first time was given the power to promulgate rules concerning the protection and enforcement of constitutional rights. The Court was also granted for the first time the power to disapprove rules of procedure of special courts and quasi-judicial bodies. But most importantly, the 1987 Constitution took away the power of Congress to repeal, alter, or supplement rules concerning pleading, practice and procedure. In fine, the power to promulgate rules of pleading, practice and procedure is no longer shared by this Court with Congress, more so with the Executive. If the manifest intent of the 1987 Constitution is to strengthen the independence of the judiciary, it is inutile to urge, as public respondents do, that this Court has no jurisdiction to control the process of execution of its decisions, a power conceded to it and which it has exercised since time immemorial.

Later, in Purganan, the last of a series of extradition cases, Justice Carpio cited the rulemaking power to ground a proposal for granting the right to bail to extradites, but cited this in conjunction with the Court’s equity power and “in carefully limited exceptions.”[139] As recently as 2010, section 5(5) was asserted by Baguio Market Vendors Multi-Purpose Cooperative v. Cabato-Cortes[140] to uphold a judicial rule requiring the payment of court fees against a legislative exemption from such fees. Finally, compare the presently accepted interpretation of the rulemaking power to the scant one-page discussion of article VIII, section 5(5) in the 2003 edition of Fr. Bernas’s treatise.[141] Setting the text of section 5(5) aside, as Justice Carpio alluded to, courts have had power to promulgate procedural rules for centuries and many rules of evidence and writs have ancient roots. The Miranda[142]rule well entrenched in popular media and cheesy police movies reflects the extent and acceptance of this power.

Arguably, the present “rulemaking power” was a sound bite and shrewd textual anchor that readily satisfied a hypertextualist Philippine bar when Chief Justice Puno needed to justify the unprecedented action he nobly undertook to address extrajudicial killings in the country at a time when government allegedly turned a blind eye or was even accused of perpetrating it. Consider the spectacle of a Chief Justice addressing a crucial national issue long before a case was brought before his court, but the textual hook and unmistakable public adulation for Puno won the day.

Chief Justice Puno primarily deployed the rulemaking power to create the writ of amparo, principally to address extrajudicial killings as documented in the landmark decision Secretary of National Defense v. Manalo,[143]which came a year after Puno’s summit and enforced “[the right to] to life, liberty and security”[144] The Puno Court also issued rules regarding the writs of habeas data and kalikasan,[145] to protect the rights to informational privacy and to a healthful environment. Finally, the Puno Court also issued a guideline stating a preference for the imposition of fines over imprisonment in libel cases, arguably an exercise of the rulemaking power in the context at the time.

Without diminishing the landmark blow struck by Manalo for human rights, that first decision recasting article VIII, section 5(5) reflects all of post-1987 Philippine judicial review’s expansive characteristics as discussed thus far. First and most prominently, Manalo makes extensive use of international instruments. For example, it cited a right to “freedom from fear”[146] drawn from the UDHR in relation to the right to security. Further, it cited decisions of bodies such as the Inter-American Commission on Human Rights, European Court of Human Rights and the United Nations’ Human Rights Committee, in each instance taking the Puno brand of meticulous care to link the reasoning to a Philippine constitutional provision or to a provision of a binding treaty. Just as prominently, the Court cited the development of the writ of amparo in the constitutions of Mexico and other Latin American countries, although noting that these came from a legal tradition different from Philippine judicial review’s American moorings. The invocation of such international sources is well-respected in international academia with the Constitutional Court of South Africa, but it readily reflects the infinite nature of textual authority from which the present Court may draw on. Again, this is not necessarily negative as it helps the courts of developing legal systems draw on doctrine from more established systems in cases novel to the former courts’ jurisdictions, but the expansion must be recognized.

Second, provisions added in the 1987 Constitution came into play alongside the above international sources, most prominently the prescription that:

No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited.[147]

Third, the decision’s expansive tone readily matches that of discussions of the expanded certiorari jurisdiction and the transcendental importance doctrine (although standing was not at issue in Manalo). Little deference was granted to the executive branch, and the decision invoked decisions from international bodies to support the weight it gave to the victim of alleged abduction and torture, against denials by the executive’s agents.

Finally, the most expansive element is not in Manalo itself, but in the rules on the writ of amparo and the numerous speeches and discussions that preceded the actual exercise of judicial review. Without repeating these in detail, even before the actual case was filed, the Court held high profile consultations with various sectors and then promulgated rules to enforce a bundle of rights so expansively phrased as the protection of life, liberty and security. It is difficult to imagine circumstances not covered by this judicial formulation yet by the time of Manalo’s promulgation, no one questioned the Court’s authority to formulate rules on so broad a subject and then enforce its own rules via judicial review.

After Manalo, several other decisions regarding the writ of amparo followed and were not unexpected given they dealt with persons whose disappearances were widely reported in national media such as Jonas Burgos, son of the late anti-Marcos activist Jose Burgos who was allegedly abducted in broad daylight in 2007,[148] University of the Philippines students Sherlyn Cadapan and Karen Empeño who were allegedly abducted in 2006,[149] Cordillera activist James Balao who was allegedly abducted in 2008,[150] urban poor leader Lourdes Rubrico who was allegedly abducted but released in 2007,[151] Filipino-American activist Melissa Roxas who was abducted but released in 2009[152] and Engr. Mored Tagitis who disappeared in 2007 and was allegedly under surveillance.[153] Further, amparo decisions explicitly declined to rule on substantive issues establishing liability such as command responsibility[154] and the issue of orders such as those ordering the return of a person’s belongings.[155] Finally, the Court repeatedly emphasized the writ of amparo’s extraordinary nature and declined to apply it to contexts other than extrajudicial killings and related disappearances. Specifically, the Court declined to apply the writ of amparo to a hold departure order against the travel of activist priest Robert Reyes,[156] property disputes,[157] the court sanctioned demolition of a dwelling[158] and confinement in a mental hospital.[159] It is also important to note that the writ of amparo has received legislation sanction and the Anti-Torture Act of 2009 requires writs of amparo or habeas data in relation to torture cases to be resolved expeditiously.[160]

What has been controversial recently is not a new rule but the Court’s active approach in MMDA v. Concerned Citizens. The decision gave specific instructions to several government agencies in relation to Manila Bay’s water quality and reiterated these in a resolution three years later. The Court also formed an advisory committee, headed by Justice Velasco, the decision’s author, that reviewed detailed reports from various government agencies. Justice Carpio wrote a vigorous dissent to the 2011 resolution, criticizing these as encroachments on executive power in the guise of the Court controlling the execution of a decision.[161]

The approach of MMDA v. Concerned Citizens, however, has arguably been codified in the Rules of Procedure for Environmental Cases. These rules provide for the appointment of a commissioner to monitor compliance with a judgment in an environmental claim and the submission of periodic reports to the court,[162] and provision for broad possible reliefs (except awards of damages) pursuant to a writ of kalikasan.[163] The writ of kalikasan, thus, beyond the writ of amparo demonstrates how broad the present judicial power can be, where the Court can articulate a substantive right using rulemaking, further articulate the right using judicial review in cases brought pursuant to the rule the Court formulated, then closely direct government agencies to implement the Court’s doctrine. This breadth is not in itself unprecedented as judiciaries in other countries have taken similar expansive approaches if only because no other government body might do so. Such expansive power must be recognized and the potential for abuse must likewise be recognized. For example, a year after MMDA v. Concerned Citizens was promulgated, a group claiming to represent small fishermen alleged that government demolition of fishing facilities pursuant to the decision was actually being done to facilitate the construction of an expressway and casino complex and would result in destruction of mangroves and corals and the livelihood of 26,000 persons.[164]

Minimalists insist that some constitutional rights are systematically “underenforced” by the judiciary and for excellent reasons. These reasons have to do with the courts’ limited fact finding capacities, their weak democratic pedigree, their limited legitimacy, and their frequent ineffectiveness as instigators of social reform.[165]

One concludes that the rulemaking power became dormant after the immensely popular Chief Justice Puno retired. No major new rule has been observed and the interpretation of existing rules promulgated under this power have strictly followed the initial announced intent. Each time the writ of amparo is affirmed, the Court takes care to also affirm its extraordinary nature. One infers that the Court recognizes that the rulemaking power lies close to the edge of its powers (or perhaps slightly beyond) and cannot be exercised absent overwhelming public support. The rulemaking power thus lies dormant but remains available to a Court that feels worthy of wielding it once again.

F. An Entrenched Acceptance of Judicial Supremacy

Perhaps the final expansion of judicial power in the Philippines is an unshakeable, entrenched acceptance of judicial supremacy as seen in the Corona impeachment trial, ongoing as of this writing. Picking up from the introduction, the trial’s progress implies that impeachment is currently not an accepted mode of correcting or otherwise responding to what appears to be an out-of-bounds Supreme Court decision and, further, that nothing short of a constitutional amendment or a revolution might change a Supreme Court constitutional interpretation.

Judicial review’s classic articulation in the Philippines was in the same breath judicial supremacy’s classic articulation, and Justice Jose Laurel’s words were used to headline the controversial Biraogo v. Philippine Truth Commission decision:

When the judiciary mediates to allocate constitutional boundaries, it does not assert any superiority over the other departments; it does not in reality nullify or invalidate an act of the legislature, but only asserts the solemn and sacred obligation assigned to it by the Constitution to determine conflicting claims of authority under the Constitution and to establish for the parties in an actual controversy the rights which that instrument secures and guarantees to them.[166]

Without revisiting judicial supremacy’s progress since Angara v. Electoral Commission, it is sufficient to note that Chief Justice Corona’s impeachment was originally sought on doctrinal grounds, most prominently his “midnight appointment” that was widely believed to be unconstitutional and against tradition. However, as the Supreme Court ruled that the appointment was valid, even this powerful ground was nuanced by alleging that it was betrayal of public trust to accept such a dubious appointment, instead of the House of Representatives directly challenging the Court’s decision with the various weighty reasons available to it. The impeachment complaint alleged:

Despite the obviously negative and confidence-shattering impact that a “midnight appointment” by an outgoing President would have on the people’s faith in the Supreme Court and the judicial system, Respondent eagerly, shamelessly, and without even a hint of self-restraint and delicadeza, accepted his midnight appointment as Chief Justice by then-President Gloria Macapagal-Arroyo.[167]

The complaint assailed several other decisions, from Biraogo which used the human rights doctrine of equal protection to strike down a Presidential Truth Commission tasked with investigating anomalies in the preceding Arroyo regime to the Court’s exoneration of Justice Mariano Castillo who was accused by several noted public international law authors and members of the UP College of Law faculty of plagiarizing the former’s articles in a decision. Despite the doctrinal grounds to question such decisions, the complaint instead argued that Corona’s votes were biased and cited an investigative report that claimed Corona voted in favor of Arroyo, who appointed him, in 78% of cases involving her.[168] The defense asserted in response to several allegations that (1) a Supreme Court decision had already settled the issue raised and (2) the assailed action was a collegial Supreme Court action of which Corona is only one member.[169] These appeared to have been accepted by the public who were conditioned to thinking of the impeachment trial as a judicial trial where evidence of individual guilt would weigh heaviest.

The House prosecution team soon changed tack even before the trial began, dropping all allegations regarding decisions and focusing on accusing Corona of amassing ill-gotten wealth and waving pictures of luxury condo units allegedly owned by Corona in front of TV cameras. The prosecution later rested having barely discussed any of the allegations regarding Supreme Court decisions.[170]

It appeared that House prosecutors felt it was too difficult to argue judicial doctrine to ordinary voters and the prosecutors and their political allies were unable to effectively do so. One must note that, whatever the reason, the prosecution was unable to question Supreme Court constitutional interpretation even in an impeachment context, despite the popularity of President Aquino at the time.

II. A Survey of the President’s Powers

The 1987 Constitution radically expanded judicial power with the explicit expanded certiorari power and this has been implicitly further expanded following Philippine attitude and practice. The presidency, on the other hand, is subject to further additional post-martial law restraints. Through a constitutional design that presumes a noble Court and an ignoble president, this section aims to establish that there is little in terms of explicit power a supposedly noble president can muster against a supposedly ignoble Court. Note that classic discussions on the separation of powers discuss drawing boundaries between the executive and legislative branches and discussions of judicial restraint have been more muted in the Philippines compared to the practical abolition of the political question doctrine and the expansion of judicial power in interpreting constitutional provisions with the exacting scrutiny of a fundamental human rights context.

A. Control, “Take Care” and General Executive Powers

The president is vested with the executive power of government and generally exercises this through his control of executive instrumentalities:

The executive power shall be vested in the President of the Philippines.

The President shall have control of all the executive departments, bureaus, and offices. He shall ensure that the laws be faithfully executed.[171]

The last sentence above is referred to as the “take care” power and articulates the President’s “primary function.”[172]Biraogo summarized:

As head of the Executive Department, the President is the Chief Executive. He represents the government as a whole and sees to it that all laws are enforced by the officials and employees of his department. He has control over the executive department, bureaus and offices. This means that he has the authority to assume directly the functions of the executive department, bureau and office, or interfere with the discretion of its officials. Corollary to the power of control, the President also has the duty of supervising the enforcement of laws for the maintenance of general peace and public order. Thus, he is granted administrative power over bureaus and offices under his control to enable him to discharge his duties effectively.[173]

Bermudez v. Executive Secretary[174]describes the President’s power of control:

[T]he President is the head of government whose authority includes the power of control over all “executive departments, bureaus and offices.” Control means the authority of an empowered officer to alter or modify, or even nullify or set aside, what a subordinate officer has done in the performance of his duties, as well as to substitute the judgment of the latter, as and when the former deems it to be appropriate. Expressed in another way, the President has the power to assume directly the functions of an executive department, bureau and office. It can accordingly be inferred therefrom that the President can interfere in the exercise of discretion of officials under him or altogether ignore their recommendations. (internal citations omitted)[175]

Rufino v. Endriga[176]stated the power of control is vast and encompasses any government instrumentality not part of the legislative or judicial branches or an independent constitutional body.[177]It ruled that a law prescribing that an instrumentality shall “enjoy autonomy of policy and operation”[178] would be unconstitutional if interpreted to exclude that instrumentality from the President’s power of control.

The legitimacy of the President’s actions was famously articulated by Justice Robert Jackson in the Steel Seizure Case:[179]

When the President acts pursuant to an express or implied authorization of Congress, his authority is at a maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. …

When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority or in which its distribution is uncertain. …

When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional power minus any constitutional powers of Congress over the matter.[180]

[A]lthough the 1987 Constitution imposes limitations on the exercise of specific powers of the President, it maintains intact what is traditionally considered as within the scope of “executive power.” Corollarily, the powers of the President cannot be said to be limited only to the specific powers enumerated in the Constitution. In other words, executive power is more than the sum of specific powers so enumerated.

It has been advanced that whatever power inherent in the government that is neither legislative nor judicial has to be executive.[181]

Marcos v. Manglapus articulates the general framework and boundaries for judicial review of presidential action:

The present Constitution limits resort to the political question doctrine and broadens the scope of judicial inquiry into areas which the Court, under previous constitutions, would have normally left to the political departments to decide. But nonetheless there remain issues beyond the Court’s jurisdiction the determination of which is exclusively for the President, for Congress or for the people themselves through a plebiscite or referendum. We cannot, for example, question the President’s recognition of a foreign government, no matter how premature or improvident such action may appear. We cannot set aside a presidential pardon though it may appear to us that the beneficiary is totally undeserving of the grant. Nor can we amend the Constitution under the guise of resolving a dispute brought before us because the power is reserved to the people.

There is nothing in the case before us that precludes our determination thereof on the political question doctrine. The deliberations of the Constitutional Commission cited by petitioners show that the framers intended to widen the scope of judicial review but they did not intend courts of justice to settle all actual controversies before them. When political questions are involved, the Constitution limits the determination to whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the official whose action is being questioned. If grave abuse is not established, the Court will not substitute its judgment for that of the official concerned and decide a matter which by its nature or by law is for the latter alone to decide.[182]

Unfortunately, the preceding section on judicial power has shown that this classic framework is cast aside with ease in later decisions. The Francisco line too readily finds “not truly political” questions in impeachment contexts, supposed to be the most political of political exercises. Province of North Cotabato v. GRP Peace Panel and certain other decisions may provide basis for judicial review when the Court is of a mood to lecture or even lay down “guidelines” that are arguably judicial legislation.

The President enjoys no special preference in the exercise of his general executive power and power of control over executive agencies. Executive privilege became controversial after alleged abuses by former President Arroyo but is less relevant in this discussion because it is a shield against legislative, not judicial, questioning of cabinet officials. Arthur Schlesinger documents how this evolved to the point that early American presidents ordered documents requested by legislators moved to the White House and dared the investigating legislators to initiate impeachment should they wish to demand the documents. National security might be an area where the President receives deference, given his greater competence “to determine the actual condition of the country”[183] due to the multitude of military and police intelligence assets at his command and following decisions such as David,Marcos v. Manglapus, and Lim v. Executive Secretary on the conduct of military exercises with the US military. These decisions, however, emphasize the Court’s wide latitude in exercising the expanded certiorari power in this sphere and any Court restraint is purely self-restraint. Further, Manalo and succeeding writ of amparo decisions emphasize how executive agents up to generals and the Secretary of Defense are readily subject to the Court’s jurisdiction.

The general use of the general executive power to oppose the judiciary lies in refusing to enforce certain decisions or interpretations. A President is always entitled to retort, as Andrew Jackson allegedly did to Worcester v. Georgia:[184] “John Marshall has made his decision; now let him enforce it!”[185] Sufficient subtlety, as seen with former President Arroyo, may make it difficult to bring a judicial challenge, cast doubt on a decision’s application to a slightly altered set of facts or change tack when a case has with some delay made its way through the court system akin to the “state of rebellion” cases. The President may also influence agencies’ decisions and rulemaking.[186]

A President is also entitled to be completely unsubtle, as exemplified by how Secretary De Lima refused to enforce the temporary restraining order that would have allowed former President Arroyo and her husband to leave the country, with the bare pretext of first not officially receiving the order and then claiming that they would not implement the order while the Department of Justice filed for reconsideration.[187] In this case, the President relied purely on testing his popularity against the Supreme Court’s. To cite another example, the Supreme Court issued an order to place PHP4.8 billion representing the withholding tax on interest from the zero coupon Poverty Eradication and Alleviation Certificates (or the PEACE bonds) issued by the government in 2001 to be placed in escrow, pending the resolution of a petition by the country’s largest banks to uphold that these bonds were not supposed to be subject to this tax under their terms. The Department of Finance did not place the amount in escrow, with Internal Revenue Commissioner Kim Henares arguing that the relevant agencies “did not receive the TRO before they were required by law to withhold the tax.”[188] These examples possibly prove that the President may well outright defy the Supreme Court on a matter he deems critical and the Court may well lose if public opinion is not on its side and be told, “John Marshall has made his decision, now let him enforce it!” However, it would be difficult and imprudent given residual fears of another Marcos for a President to confront a Supreme Court in this way with any frequency. Employing technicalities or outright defiance is unlikely to enjoy public support in the long term and a popular President would not want to tax his political capital by being accused of doing what former President Arroyo allegedly did with impunity, albeit with more subtlety and semblance of a legal pretext. The judiciary is also, of course, entitled to be equally determined and equally emphatic in rendering a decision against the President.

Supreme Court Spokesman and Court Administrator Jose Midas Marquez on Wednesday accused the Aquino government of emboldening the public to defy the courts.

…

Marquez took note of the Executive Branch’s “habit” of invoking technicalities to evade compliance of court orders “even if compliance was still possible.”[189]

In addition to the above Supreme Court orders, Marquez cited “the DoJ’s defiance of a Manila trial court judge’s order for the inspection of the vehicle National Bureau of Investigation Deputy Director Reynaldo Esmeralda was riding in when he was supposedly ambushed on Feb. 21 this year.”[190] The alleged defiance of court orders took a strange turn in the much publicized “bikini girls” case, where a Catholic high school brazenly refused to comply with a trial court order to allow several high school girls to attend their graduation after the school disallowed them from attending their school’s graduation ceremony after the school administration discovered photos in Facebook allegedly showing the girls in bikinis and in salacious poses. Some pundits put these bikini photos on the same plane as Secretary de Lima’s defiance of the Supreme Court order that would have allowed former President Arroyo to leave the country and asked why the two should be treated differently. Arguably, the latter was spurred by the belief that the Supreme Court acted with extreme partiality and political motivations and I wrote that individuals’ religious beliefs however strong should not lead to an intellectual impunity that believes itself above the law:

With what impunity, thus, do teachers claim to know morality better than these parents to the point of defying a court order?

… The privacy violation here is not the superficial kind involving a nun hacking into a student’s account in search of compromising photos. (Facebook friends allegedly sent the photos to STC.) The right to privacy in its deepest sense protects an intimate zone in which a human is free to make fundamental decisions about oneself. … Perhaps the most fundamental decision in the Facebook age is how one shapes the identity one presents to the world, including one’s sexuality. As Dean and Justice Irene Cortes put it: “The stand for privacy need not be taken as hostility against other individuals, against government, or against society. It is but an assertion by the individual of his inviolate personality.”

The “bikini girls” are not being punished for a lighthearted teenage moment immortalized on the Internet. They are really being punished for transgressing the unspoken stereotype of the Filipino woman straitjacketed as a Maria Clara who should not bare even her ankles. This stereotype is as outmoded as the idea of educating girls just enough to allow them to pray. Teenage girls worldwide now admire the new stereotype of strong, smart and independent women, from modern characters such as Hermione Granger and Katniss Everdeen to Jane Austen’s Elizabeth Bennet. They embrace “Sex and the City’s” message of equal footing in relationships. And they believe one is free to revel in one’s own beauty for its own sake. As “The Vagina Monologues” put it: “My short skirt, believe it or not, has nothing to do with you.”

We must protect the deeper right to privacy from intellectual impunity where schools defy courts and diverge from human rights standards protected by our Constitution. … We must protect the idea that our national values cannot be imposed but are shaped by an evolving consensus emerging from the exercise of these rights, including by teenage girls.

Beyond STC, we must curb intellectual impunity in the name of “morality” or “values” in our national decisions. With the same intellectual impunity, some bishops floated the idea of excommunicating President Aquino if he pursues reproductive health legislation and called for People Power against him in a colorful sideshow to the ongoing impeachment trial. With the same intellectual impunity, some vandalized and eventually forced the closure of Mideo Cruz’s allegedly blasphemous art exhibit instead of staging their own and allowing the public to judge. With the same intellectual impunity, Comelec blocked a homosexual party from participating in the party-list elections until the Supreme Court noted that its members’ alleged immorality was not punished by Philippine law. Justice Mariano del Castillo wrote: “[O]ur democracy precludes using the religious or moral views of one part of the community to exclude from consideration the values of other members of the community.”[191]

The President would be well advised to choose a mode of resistance better grounded in Justice Jackson’s categories of presidential power and with less potential for massive collateral damage than clumsy outright defiance of the Supreme Court.To cite an American example, parenthetically, the American Social Security Administration blatantly disregarded late 1970s appellate court rulings that would have made it more difficult for the agency to reduce the number of its beneficiaries, to the point that the US Ninth Circuit promulgated a statewide injunction and Congress considered legislation to put an end to the conflict.[192] A Philippine parallel might be Lapinid v. Civil Service Commission,[193] whose barbaric yawp against an independent constitutional body read:

We note with stern disapproval that the Civil Service Commission has once again directed the appointment of its own choice in the case at bar. We must therefore make the following injunctions which the Commission must note well and follow strictly.

…Up to this point, the Court has leniently regarded the attitude of the public respondent on this matter as imputable to a lack of comprehension and not to intentional intransigence. But we are no longer disposed to indulge that fiction. Henceforth, departure from the mandate of Luego by the Civil Service Commission after the date of the promulgation of this decision shall be considered contempt of this Court…

…

The Commission on Civil Service has been duly warned. Henceforth, it disobeys at its peril.

B. The Commander-in-Chief Power

It is appropriate to begin a discussion of the President’s specific, explicit powers with the Commander-in-Chief power, one described by Schlesinger as “of prime importance. The Founders were determined to deny the American President what Blackstone had assigned to the British King – ‘the sole prerogative of making war and peace.’”[194] The 1987 Constitution provides:

The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law.[195]

This presidential role emphasizes why executive power is concentrated in one person when decisive, immediate action is called for and the classic example of a political question where Baker’s “unusual need for questioning adherence to a political decision already made” is required is in the middle of a shooting war. In summary, however, the President enjoys little additional preference against judicial review in wielding the Commander-in-Chief power outside an actual war. The power was granted great deference in decisions during former President Arroyo’s term, but only in the narrow confines of the “most benign” “calling out” power.

This is not difficult to understand given that much of the 1987 Constitution’s restraints on the president were motivated by fear of martial law and a Commander-in-Chief turned dictator. The rest of the Constitution’s article VII, Section 18 imposes multiple safeguards against a declaration of martial law or a suspension of the writ of habeas corpus, including both judicial and congressional review, and these powers are unlikely to be exercised except in a genuinely dire emergency. Or rather, based as past allegations against former President Arroyo, a president might attempt to evade these restrictions by giving actions akin to martial law other names.[196]

Note, however, that when former President Arroyo declared martial law in Maguindanao following the so-called Ampatuan massacre of 57 women and journalists by the Ampatuan political clan and subsequent alleged mobilization of thousands of their armed followers, the Court despite the multiple safeguards against martial law declined to rule on the matter for two years, after which it dismissed the case for mootness. The Court reasoned that she lifted martial law after only eight days and Congress likewise did not act further on the matter.[197] In this decision, Justice Carpio vigorously dissented to emphasize, first, that standing is granted to “any citizen” to question a declaration of martial law and this grant of standing should not be restricted in interpretation. Second, Justice Carpio argued that the power to declare martial law is restricted by the Revised Penal Code definition of rebellion, which requires that the armed uprising or violence contemplated have a political complexion such as the intent to remove a potion of Philippine territory from the government’s jurisdiction. He argued that a declaration of martial law was unconstitutional where the alleged armed mobilization was by known political allies of then President Arroyo. He reiterated a low bar, however, for reviewing the propriety of martial law and proposed the low bar of probable cause. Third, Justice Carpio vigorously argued that the Court’s power of review was independent of Congress’ and the Court could act without waiting for Congressional inaction.[198]

The present framework for the Commander-in-Chief powers was articulated in Sanlakas v. Reyes[199]and reiterated in David v. Macapagal-Arroyo:

[Section 18] grants the President, as Commander-in-Chief, a “sequence” of “graduated power[s].” From the most to the least benign, these are: the calling out power, the power to suspend the privilege of the writ of habeas corpus, and the power to declare martial law. In the exercise of the latter two powers, the Constitution requires the concurrence of two conditions, namely, an actual invasion or rebellion, and that public safety requires the exercise of such power. However, as we observed in Integrated Bar of the Philippines v. Zamora, “[t]hese conditions are not required in the exercise of the calling out power. The only criterion is that ‘whenever it becomes necessary,’ the President may call the armed forces ‘to prevent or suppress lawless violence, invasion or rebellion.’”[200]

The framework of graduated powers gives great deference to the President with respect to the “most benign” power, the “calling out” power or the deployment of the military, from the deployment of Marines in shopping malls in IBP v. Zamora to military responses to a “state of rebellion” in Sanlakas. This has been borne out in the American experience, which moved from wars declared with Congressional authorization to the President’s unilateral deployment of troops in various exercises, police actions and peacekeeping missions with the term war rarely mentioned. This change also conforms to modern military reality from formal battlefields to abstract battle lines crossed by terrorists, insurgents, guerillas and commandos. Of course, the power to position troops itself is broader than it seems. In 1846, for example, US President James Polk deployed American troops in disputed territory and were predictably attacked by Mexican troops. Whatever Congress’ power over war on paper, “Polk then stampeded Congress into a recognition of a state of war.”[201]

The Supreme Court recently and explicitly upheld the breadth of presidential power outside a martial law or suspension of writ context in Province of North Cotabato v. GRP Peace Panel:

[T]he President’s power to conduct peace negotiations is implicitly included in her powers as Chief Executive and Commander-in-Chief. As Chief Executive, the President has the general responsibility to promote public peace, and as Commander-in-Chief, she has the more specific duty to prevent and suppress rebellion and lawless violence.[202]

Further, Sanlakas held that the Commander-in-Chief power may be exercised broadly when coupled with the executive power:

Section 18, Article VII does not expressly prohibit the President from declaring a state of rebellion. Note that the Constitution vests the President not only with Commander-in-Chief powers but, first and foremost, with Executive powers.

…

Lincoln believed the President’s power broad and that of Congress explicit and restricted, and sought some source of executive power not failed by misuse or wrecked by sabotage. He seized upon the President’s designation by the Constitution as Commander-in-Chief, coupled it to the executive power provision — and joined them as “the war power” which authorized him to do many things beyond the competence of Congress.

…

The lesson to be learned from the U.S. constitutional history is that the Commander-in-Chief powers are broad enough as it is and become more so when taken together with the provision on executive power and the presidential oath of office.

…

Thus, the President’s authority to declare a state of rebellion springs in the main from her powers as chief executive and, at the same time, draws strength from her Commander-in-Chief powers.[203]

David added that “the primary function of the President is to enforce the law…. … In the exercise of such function, the President, if needed, may employ the powers attached to his office as the Commander-in-Chief….”[204] One notes that previous decisions have recognized great deference in reviewing the factual bases for the exercise Commander-in-Chief powers and even Justice Carpio’s dissent in Fortun regarding an actual declaration of martial law proposed the low bar of probable cause for a review of such a declaration. In the United States, the Commander-in-Chief power has been stretched to argue for an inherent discretion to interrogate enemy combatants, practically arguing to justify torture in certain circumstances.[205]

The deference to the “calling out” power is deceptive, however, in that it exists only within a very narrow sphere bounded by a large number of restrictions. The President may deploy the armed forces to suppress a rebellion but past the point when persons can legitimately be treated as combatants, he will be bound by restrictions against unreasonable search and the rights of the accused. Sanlakas precisely emphasized that the declaration of a “state of rebellion” was tolerable only in that the Court found that it had no legal significance and “the mere declaration of a state of rebellion cannot diminish or violate constitutionally protected rights.”[206]Sanlakas added that “a person may be subjected to a warrantless arrest for the crime of rebellion whether or not the President has declared a state of rebellion, so long as the requisites for a valid warrantless arrest are present.”[207]David stated that although the President has broad power to declare a “state of national emergency” and act to address such an emergency, he may not exercise emergency powers such as the takeover of private property absent congressional authorization.[208]

Finally, the deference results in part from unelected Justices’ natural hesitation to countermand military matters but such deference has always been accompanied by a reiteration that the Court may invalidate a “calling out” if it is established to be a grave abuse of discretion. The bar has been set explicitly high, however:

As to how the Court may inquire into the President’s exercise of power, Lansang adopted the test that “judicial inquiry can go no further than to satisfy the Court not that the President’s decision is correct,” but that “the President did not act arbitrarily.” Thus, the standard laid down is not correctness, but arbitrariness. In Integrated Bar of the Philippines, this Court further ruled that “it is incumbent upon the petitioner to show that the President’s decision is totally bereft of factual basis” and that if he fails, by way of proof, to support his assertion, then “this Court cannot undertake an independent investigation beyond the pleadings.”

Petitioners failed to show that President Arroyo’s exercise of the calling-out power, by issuing PP 1017, is totally bereft of factual basis. A reading of the Solicitor General’s Consolidated Comment and Memorandum shows a detailed narration of the events leading to the issuance of PP 1017, with supporting reports forming part of the records. Mentioned are the escape of the Magdalo Group, their audacious threat of the Magdalo D-Day, the defections in the military, particularly in the Philippine Marines, and the reproving statements from the communist leaders. There was also the Minutes of the Intelligence Report and Security Group of the Philippine Army showing the growing alliance between the NPA and the military. Petitioners presented nothing to refute such events. Thus, absent any contrary allegations, the Court is convinced that the President was justified in issuing PP 1017 calling for military aid.

Indeed, judging the seriousness of the incidents, President Arroyo was not expected to simply fold her arms and do nothing to prevent or suppress what she believed was lawless violence, invasion or rebellion. However, the exercise of such power or duty must not stifle liberty.[209]

The problem for a popular president, however, is that the Commander-in-Chief power offers little outside the purely military sphere for his execution of programs. He may not, for example, have an allegedly corrupt former official court-martialed instead of prosecuted.

C. Emergency Powers

When David discussed how the Commander-in-Chief power may be wielded broadly in conjunction with the general executive power, the power of control and the “take care” power, it also mentioned emergency powers in relation to the following constitutional provisions:

In times of national emergency, when the public interest so requires, the State may, during the emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of any privately-owned public utility or business affected with public interest.[210]

In times of war or other national emergency, the Congress may, by law, authorize the President, for a limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn by resolution of the Congress, such powers shall cease upon the next adjournment thereof.[211]

David affirmed that the President may declare a “state of national emergency” and bring all of his powers to bear on such an emergency, including the Commander-in-Chief powers. It described emergencies as encompassing “a wide range of situations”[212] in three broad categories: economic, natural disaster and national security. Thus, for example, the President could declare an economic emergency with some reasonable factual basis and deploy troops to help build buildings, bridges and roads in remote areas.

David, however, clarified that these powers are not the emergency powers contemplated in the Constitution but are part of the President’s implied executive powers or another explicit power. Additional emergency powers may only be authorized by Congress, under the following framework:

(1) There must be a war or other emergency.

(2) The delegation must be for a limited period only.

(3) The delegation must be subject to such restrictions as the Congress may prescribe.

(4) The emergency powers must be exercised to carry out a national policy declared by Congress.[213]

One recalls Justice Jackson’s three graduations of presidential power, as well as his admonition that:

[The forefathers] knew what emergencies were, knew the pressures they engender for authoritative action, knew, too, how they afford a ready pretext for usurpation. We may also suspect that they suspected that emergency powers would tend to kindle emergencies.[214]

Absent Congressional authorization, the President falls back on his general executive power and Justice Jackson’s twilight zone,[215] and enjoys no particular preference against judicial review.

D. Foreign Affairs and Executive Agreements

More than the “calling out” gradation of the Commander-in-Chief power, the President traditionally enjoys some of the greatest judicial deference in foreign affairs, classically described as “the very delicate, plenary and exclusive power of the President as the sole organ… in the field of international relations,”[216] a field where the separation of powers finds far less application.[217] Schlesinger noted that:

Congress could not easily stay abreast of the details of relations with foreign states. It rarely acted as a unified body. It could not conduct negotiations. It could not be relied on to preserve secrecy about matters where secrecy was indispensable. Moreover, international law itself, by requiring in every nation a single point of responsible authority, confirmed presidential primacy in foreign relations.[218]

Perhaps this deference is best reflected in this power’s lack of an explicit grant and left implied in the Constitution’s structure, with only restrictions on the power made explicit:

No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate.[219]

The President may contract or guarantee foreign loans on behalf of the Republic of the Philippines with the prior concurrence of the Monetary Board, and subject to such limitations as may be provided by law.[220]

The lack of “judicially manageable standards” in foreign affairs was highlighted in Arroyo v. De Venecia:[221]

[W]hile Art. VIII, §1 has broadened the scope of judicial inquiry… it has not altogether done away with political questions such as those which arise in the field of foreign relations.[222]

In the political question’s jargon, foreign affairs is a key example of a functional question,[223] or at least an example where hypertextualism is challenged by a rare dearth of text. Functionally, the President’s primacy in foreign affairs is readily understood as a state needs to speak with one clear, definitive voice to others. Marcos v. Manglapus’ classic discussion cites an example:

[T]here remain issues beyond the Court’s jurisdiction… We cannot, for example, question the President’s recognition of a foreign government….[224]

An established line of cases has also affirmed the judiciary’s acceptance of determinations by the executive that an international organization enjoys certain immunities,[225] although this is subject to exceptions discussed below.

The traditional deference to the President in foreign affairs has doctrinally spilled over into the modern diplomatic development of executive agreements over treaties. Executive agreements, entered into with other states solely by the executive pursuant to its foreign affairs power, cover a broad array of subjects and are distinguished from treaties in practice almost solely by these agreements’ not being submitted to the Senate for ratification. In the United States, these became “an instrument of major foreign policy” when an exchange of notes with Great Britain limited naval forces in the Great Lakes, shortly after war with Great Britain ended. The US Senate did not ratify the executive agreement although it endorsed it with a two-thirds vote.[226] The 2011 decision Bayan Muna v. Romulo summarized the present doctrine:

The categorization of subject matters that may be covered by international agreements mentioned in Eastern Sea Trading is not cast in stone. … [F]orm takes a back seat when it comes to effectiveness and binding effect of the enforcement of a treaty or an executive agreement, as the parties in either international agreement each labor under the pacta sunt servanda principle.

As may be noted, almost half a century has elapsed since the Court rendered its decision in Eastern Sea Trading. Since then, the conduct of foreign affairs has become more complex and the domain of international law wider, as to include such subjects as human rights, the environment, and the sea. In fact, in the US alone, the executive agreements executed by its President from 1980 to 2000 covered subjects such as defense, trade, scientific cooperation, aviation, atomic energy, environmental cooperation, peace corps, arms limitation, and nuclear safety, among others. Surely, the enumeration in Eastern Sea Trading cannot circumscribe the option of each state on the matter of which the international agreement format would be convenient to serve its best interest.[227]

International agreements involving political issues or changes of national policy and those involving international arrangements of a permanent character usually take the form of treaties. But international agreements embodying adjustments of detail carrying out well-established national policies and traditions and those involving arrangements of a more or less temporary nature usually take the form of executive agreements.[229]

Bayan Muna v. Romulo is a strong precedent in the executive’s favor in that the Court upheld the executive agreement despite the available reasons to do otherwise. The agreement in question was a bilateral “non-surrender” agreement, executed with the United States in 2003 through an exchange of diplomatic notes, where each country agreed not to surrender a national of the other to an international tribunal. The Philippines signed the Rome Statue establishing the International Criminal Court in 2000, although it only acceded to the treaty in 2011 after the decision,[230] and the United States entered into these bilateral agreements with various countries in an attempt to protect its nationals from harassment in such international tribunals. The Bayan Muna petitioners argued that the non-surrender agreement contravened the Rome Statute, although the Court ruled that it complemented the latter, the International Criminal Court’s jurisdiction intended to complement domestic courts’. The petitioners also argued that the agreement contravened the Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity, which permits the Philippines to surrender persons to an international tribunal already investigating or prosecuting the crime they are accused of in lieu of a domestic investigation.[231] In a vigorous dissent, Justice Carpio emphasized that the Act on Crimes against International Humanitarian Law stated a policy that a state is has a duty to exercise criminal jurisdiction over international crimes and the agreement should thus be ratified before effectively amending a law.

One thus concludes that if the present jurisprudential trajectory is followed, an executive agreement would conceivably only be struck down if it too blatantly conflicted with a law or treaty. This was in fact the case in Adolfo v. Court of First Instance of Zambales,[232]where the 1947 Military Bases Agreement provided that the Philippines would exercise jurisdiction over members of the United States armed forces but custody would be entrusted to the commanding officer of the nearest American base. However, an exchange of notes in 1965 extended this to a “civilian component.” Justice Fernando wrote that the Bases Agreement, being a ratified treaty, would have to be respected but declared the case moot following the American civilian in question’s voluntary waiver of an American commander’s custody. Adolfo was in fact cited in Bayan Muna v. Romulo.

Bayan v. Zamora[233] upheld the Visiting Forces Agreement, although it was ratified by the Senate by then. Lim v. Executive Secretary declined to examine whether American troops were engaged in offensive exercises in the Philippines without further proof, raising that the Supreme Court is not a trier of facts.

Finally, despite the deference granted in a foreign affairs context, one must remain aware that the expanded certiorari power may strike down what is deemed grave abuse of discretion. Bayan Muna reiterated:

[B]earing in mind what the Court said in Tañada v. Angara, “that it will not shirk, digress from or abandon its sacred duty and authority to uphold the Constitution in matters that involve grave abuse of discretion brought before it in appropriate cases, committed by any officer, agency, instrumentality or department of the government,” we cannot but resolve head on the issues raised before us. Indeed, where an action of any branch of government is seriously alleged to have infringed the Constitution or is done with grave abuse of discretion, it becomes not only the right but in fact the duty of the judiciary to settle it. As in this petition, issues are precisely raised putting to the fore the propriety of the Agreement pending the ratification of the Rome Statute.[234]

Tanada v. Angara prominently addressed whether the Senate could validly concur in the agreement establishing the World Trade Organization and refused to consider this a political question despite the clear textual commitment of treaties to the Senate. This was because of nationalist constitutional provisions that may have stated policies contrary to the WTO’s. In a foreign affairs context, a hypertextualist may draw on far more verbiage by considering treaties or declaring international custom. For example, dictum in Liang v. People,[235]which rejected an extension of diplomatic immunity of a Chinese Asian Development Bank economist to a slander charge, stated:

The DFA’s determination that a certain person is covered by immunity is only preliminary which has no binding effect in courts.[236]

The holding was anchored on the Vienna Convention on Diplomatic Relations, under which immunity does not extend beyond official functions.[237]Liang is contrasted with Minucher v. Court of Appeals,[238]which recognized that a US Drug Enforcement Agency agent conducting surveillance on alleged international drug traffickers in the Philippines and testifying in a criminal case against one was acting within his official functions and enjoyed diplomatic immunity. Liang is not the only exception to the general deference to an executive recognition of diplomatic immunity. German Agency for Technical Cooperation v. Court of Appeals[239]rejected a finding of diplomatic immunity made by the Solicitor General and not the Department of Foreign Affairs, although the Court noted the website of the “agency” concerned described it as “a company under private law” and the matter was a labor case involving allegedly illegally dismissed Filipinos. The reasoning behind these precedents may readily be used against the President in weightier matters beyond individual foreigners.

E. Appointments

The Constitution provides:

The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution. He shall also appoint all other officers of the Government whose appointments are not otherwise provided for by law, and those whom he may be authorized by law to appoint. The Congress may, by law, vest the appointment of other officers lower in rank in the President alone, in the courts, or in the heads of departments, agencies, commissions, or boards.[240]

This provision is understood to refer to four categories:

First, the heads of the executive departments; ambassadors; other public ministers and consuls; officers of the Armed Forces of the Philippines, from the rank of colonel or naval captain; and other officers whose appointments are vested in the President in this Constitution;

Second, all other officers of the government whose appointments are not otherwise provided for by law;

Third, those whom the President may be authorized by law to appoint; and

Fourth, officers lower in rank whose appointments the Congress may by law vest in the President alone.[241]

Bermudez v. Executive Secretary describes the President’s general power to appoint the executive branch’s officers in broad terms:

When the Constitution or the law clothes the President with the power to appoint a subordinate officer, such conferment must be understood as necessarily carrying with it an ample discretion of whom to appoint. …

[T]he phrase “upon recommendation of the Secretary” … should be interpreted, as it is normally so understood, to be a mere advise, exhortation or indorsement, which is essentially persuasive in character and not binding or obligatory upon the party to whom it is made. … The President, being the head of the Executive Department, could very well disregard or do away with the action of the departments, bureaus or offices even in the exercise of discretionary authority, and in so opting, he cannot be said as having acted beyond the scope of his authority.[242]

The power to appoint is essentially executive in nature, and the legislature may not interfere with the exercise of this executive power except in those instances when the Constitution expressly allows it to interfere. Limitations on the executive power to appoint are construed strictly against the legislature. The scope of the legislature’s interference in the executive’s power to appoint is limited to the power to prescribe the qualifications to an appointive office.[243]

Rufino v. Endriga added:

Usurpation of this fundamentally Executive power by the Legislative and Judicial branches violates the system of separation of powers that inheres in our democratic republican government.[244]

Rufino found that the Cultural Center of the Philippines was part of the executive branch, not being legislative or judicial, and struck down provisions of a law that allowed the center’s board of trustees to appoint a new trustee in case of a vacancy as unconstitutional and against the President’s power to appoint.[245] Contrast Rufino with Liban v. Gordon’s[246]different outcome because it found that the entity in question, the Philippine National Red Cross, was not a government entity.

Following Cayetano v. Monsod, the President has enjoyed deference in choice of appointments, with requirements for positions interpreted in his favor in cases of doubt. There, the Court ruled that lawyer Christian Monsod’s experience in various banks and non-governmental organizations met the requirement that a Commission on Elections commissioner should have been “engaged in the practice of law for at least ten years”[247] and delivered an elaborate dissection of this phrase complete with quotes from magazine articles and strained explanations of how a World Bank lawyer encounters the laws of other countries and a National Movement for Free Elections chair encounters election law issues.[248]

Pimentel v. Executive Secretary, with similar deference, upheld how former President Arroyo appointed several cabinet secretaries in an acting capacity while Congress was in session then immediately reappointed them in an ad interim capacity immediately upon Congress’ recess.[249] This substantially delayed the need for the appointees’ confirmation because acting secretaries need not be confirmed by the Commission on Appointments. The decision also rejected the proposition that only an undersecretary may be appointed an acting secretary.[250] Another recent decision upheld a law that allowed the President to appoint officers-in-charge for certain Autonomous Region of Muslim Mindanao offices until an upcoming election, in the context of election synchronization.[251]

More recently, in Paguia v. Office of the President, Alan Paguia was not only denied standing to assail former Chief Justice Davide’s appointment as an ambassador for being allegedly beyond the mandatory retirement age for Department of Foreign Affairs employees but reminded his suspension from the practice of law prohibited him from even bringing the suit.[252]Soriano v. Lista similarly rejected citizen and taxpayer standing for a petitioner questioning the lack of Commission on Appointments confirmation of senior Coast Guard officers. The decision noted the Coast Guard is no longer technically part of the armed forces,[253] and a previous decision ruled similarly regarding the Philippine National Police and its senior officers.[254]

The power to appoint is obviously important in relation to the judiciary in that the President appoints Supreme Court Justices and other judges, although the impact of such appointments are not immediately felt. In President Aquino’s case, he may feel stymied by ten years’ worth of judicial appointments made by his predecessor.

Otherwise, the deference accorded to the President’s power to appoint, however, is not particularly helpful to a popular president facing an adverse Court in that the deference does not extend to judicial review of the appointees’ acts. The Court may also opt to find grave abuse of discretion when interpreting an appointee’s qualifications if there is an available textual hook in the relevant constitutional or statutory provision.

F. Pardon

The Constitution provides:

Except in cases of impeachment, or as otherwise provided in this Constitution, the President may grant reprieves, commutations, and pardons, and remit fines and forfeitures, after conviction by final judgment.[255]

The nature of a pardon has been described as follows:

In Monsanto v. Factoran, we have firmly established the general rule that while a pardon has generally been regarded as blotting out the existence of guilt so that in the eyes of the law the offender is as innocent as though he never committed the offense, it does not operate for all purposes. The very essence of a pardon is forgiveness or remission of guilt and not forgetfulness. It does not erase the fact of the commission of the crime and the conviction thereof. Pardon frees the individual from all the penalties and legal disabilities and restores to him all his civil rights. Unless expressly grounded on the person’s innocence, it cannot bring back lost reputation for honesty, integrity and fair dealing.[256]

The President’s power to pardon is understood to be one of utmost discretion and Marcos v. Manglapus’ classic discussion noted:

The power is also understood to be broad and Llamas v. Orbos[258] upheld a pardon in an administrative case as the Constitution’s qualification only excluded impeachment cases.[259] A pardon may be accompanied by conditions or reinstatement to an administrative position.[260] The main restriction is the requirement that a pardon be granted only after a conviction by final judgment. People v. Salle[261]categorically declared:

We now declare that the “conviction by final judgment” limitation under Section 19, Article VII of the present Constitution prohibits the grant of pardon, whether full or conditional, to an accused during the pendency of his appeal from his conviction by the trial court. … [A]gencies or instrumentalities of the Government concerned must require proof from the accused that he has not appealed from his conviction or that he has withdrawn his appeal. … The acceptance of the pardon shall not operate as an abandonment or waiver of the appeal, and the release of an accused by virtue of a pardon, commutation of sentence, or parole before the withdrawal of an appeal shall render those responsible therefor administratively liable. Accordingly, those in custody of the accused must not solely rely on the pardon as a basis for the release of the accused from confinement.[262]

The dearth of jurisprudence on the power to pardon appears to affirm its breadth and highly discretionary nature. When former President Arroyo pardoned former President Joseph Estrada following his conviction for plunder,[263] debates revolved purely around its wisdom, not its validity. As always, however, the Court may find grave abuse of discretion. For example, it may decide that a pardon or stated reasons for a pardon contradicts a stated constitutional policy, akin to how certain provisions were invoked in Tanada v. Angara in an attempt to block a ratified treaty.

The problem, again, for a popular president is that the power to pardon is extremely narrow. A pardon’s main use in opposing the judiciary is to signal severe disagreement with the interpretation of a law or even the Constitution by pardoning those convicted pursuant to this interpretation. This was most famously done by Thomas Jefferson, in opposition to the Alien and Sedition Act of 1801, and he wrote:

[N]othing in the Constitution has given [the judiciary] a right to decide for the Executive, more than to the Executive to decide for them. Both magistrates are equally independent in the sphere of action assigned to them. The judges, believing the law constitutional, had a right to pass a sentence… But the executive, believing the law to be unconstitutional, were bound to remit the execution of it; because that power had been confined to them by the Constitution… [T]he opinion which gives to the judges the right to decide what laws are constitutional, and what not, not only for themselves in their own sphere of action, but for the legislature and executive also, in their spheres, would make the judiciary a despotic branch.[264]

G. Veto

The President’s power to veto is treated with similar deference:

(1) Every bill passed by the Congress shall, before it becomes a law, be presented to the President. If he approves the same he shall sign it; otherwise, he shall veto it and return the same with his objections to the House where it originated, which shall enter the objections at large in its Journal and proceed to reconsider it. If, after such reconsideration, two-thirds of all the Members of such House shall agree to pass the bill, it shall be sent, together with the objections, to the other House by which it shall likewise be reconsidered, and if approved by two-thirds of all the Members of that House, it shall become a law. In all such cases, the votes of each House shall be determined by yeas or nays, and the names of the Members voting for or against shall be entered in its Journal. The President shall communicate his veto of any bill to the House where it originated within thirty days after the date of receipt thereof, otherwise, it shall become a law as if he had signed it.

(2) The President shall have the power to veto any particular item or items in an appropriation, revenue, or tariff bill, but the veto shall not affect the item or items to which he does not object.[265]

The dearth of jurisprudence and textual hooks governing vetos may similarly reflect the belief that it is purely discretionary. Gonzales v. Macaraig[266] upheld the broad use of the “item” veto to veto “provisions” in the General Appropriations Bill for 1989, despite a Senate resolution that opined this was unconstitutional, and noted that some provisions were inappropriate for an appropriations bill.[267]

However, as with the power to pardon, the power to veto is narrow and is principally directed at Congress. A veto may indirectly oppose the judiciary by targeting legislation pursuant to a decision the President wishes to oppose. For example, Andrew Jackson vetoed the charter of the Bank of the United States’ renewal out of disagreement with McCulloch v. Maryland.[268]Noting a more recent American practice, a President may make a “signing statement” or articulate how he intends to enforce (or not enforce) a bill he signs into law instead of using his veto. Harvard Professor Laurence Tribe believes such decisions to sign and make a statement are “manifestly unreviewable.”[269] More broadly, vetos may be part of the executive’s constitutional interpretation.[270] As with other powers, finally, it is not impossible that a veto be declared grave abuse of discretion.

H. Fiscal Powers

The President’s fiscal powers merit two quick notes:

(1) The Congress may not increase the appropriations recommended by the President for the operation of the Government as specified in the budget.

(5) No law shall be passed authorizing any transfer of appropriations; however, the President, the President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, and the heads of Constitutional Commissions may, by law, be authorized to augment any item in the general appropriations law for their respective offices from savings in other items of their respective appropriations.[271]

First, the President’s power to realign funds is mundane, uncontroversial and highly discretionary, particularly coupled with his power to control the executive and focus all his powers in an emergency. However, judicial review will likely be directed at the funds’ use and not the realignment.

Second, the President could conceivably refuse to increase the judiciary’s budget during his entire term as Congress is only bound not to reduce it.[272] This is, of course, an extremely indirect and abstract method of making his case, with unsure effectiveness.

I. Impeachment

Impeachment is a congressional prerogative but is included in this discussion as it is the gravest check against the Supreme Court. Conceivably, as President Aquino’s critics allege, a president may influence his allies in Congress to initiate impeachment. Entire books have been written about impeachment given its gravity, but this discussion is solely concerned with impeachment’s use by the political branches to challenge constitutional interpretation.

The prosecution in the ongoing Corona impeachment trial failed to make these challenges. As discussed in the end of the last section, the prosecution team soon dropped all allegations regarding decisions and focused on accusing Corona of amassing ill-gotten wealth. The prosecution later rested having barely discussed any of the allegations regarding Supreme Court decisions.[273] House prosecutors apparently felt it too difficult to argue judicial doctrine to ordinary voters.

Again, the Philippine perception of judicial supremacy diluted the charges against Corona in relation to constitutional interpretation at the outset. The powerful charge of a midnight appointment, being contrary to a decided case, was nuanced by alleging that it was betrayal of public trust to accept such a dubious appointment, following Fr. Bernas’s initial opinion that “any person who accepted the post of Chief Justice from Ms Arroyo would open himself or herself to impeachment by the next Congress.”[274] The questionable reasoning behind De Castro v. Judicial and Bar Council itself went unchallenged. The impeachment complaint alleged:

Despite the obviously negative and confidence-shattering impact that a “midnight appointment” by an outgoing President would have on the people’s faith in the Supreme Court and the judicial system, Respondent eagerly, shamelessly, and without even a hint of self-restraint and delicadeza, accepted his midnight appointment as Chief Justice by then-President Gloria Macapagal-Arroyo.[275]

The complaint assailed several other decisions, from Biraogo which used the human rights doctrine of equal protection to strike down a Presidential Truth Commission tasked with investigating anomalies in the preceding Arroyo regime to the Court’s exoneration of Justice Mariano Castillo who was accused by several noted public international law authors and members of the UP College of Law faculty of plagiarizing the former’s articles in a decision. Despite the doctrinal grounds to question such decisions, the complaint instead argued that Corona’s votes were biased and cited an investigative report that claimed Corona voted in favor of Arroyo, who appointed him, in 78% of cases involving her.[276] The defense asserted in response to several allegations that (1) a Supreme Court decision had already settled the issue raised and (2) the assailed action was a collegial Supreme Court action of which Corona is only one member.[277]

“[S]imple questions deserve straight answers, not a defense by abstract legalism that claims that the questions may not even be asked.”[278] Nevertheless, these defense positions appeared to have been accepted by the public who were conditioned to thinking of the impeachment trial as a judicial trial where evidence of individual guilt would weigh heaviest. Senator Antonio Trillanes IV was the only senator-judge to articulate a philosophy other than a proposed impartial adherence to evidence:

If an impeachment trial were meant to be solely evidence-based, then why didn’t our constitutional framers just give that power to the Supreme Court whose members are supposed to be experienced judges?

The overarching policy issue in this … episode is whether the conviction or acquittal of … Corona would be good for our country. To resolve this, I intend to use political acceptability as the sole criterion to evaluate the projected outcomes of either (decision).

My verdict should not be based solely on evidence as it now becomes a matter of public policy[279]

Trillanes’s position appears to have been taken less seriously than armchair lawyering. Picking up the point that senators are elected officials and not necessarily lawyers by profession, I wrote on the need to ensure the electorate’s thoughts on constitutional interpretation needed to be heard in the impeachment of a Justice:

This impeachment … is about once again placing our democratic institutions under intense scrutiny as a new generation of voters with no firsthand memory of Edsa emerges. An accounting of the judiciary … must be an accounting of its very doctrines to ensure that these adhere to the principles the President, Congress and the “only boss” believe our nation stands for. As Stanford Dean Larry Kramer cautioned: “To nudge popular institutions out of the life of the Constitution is to impoverish both the Constitution and the republican system it is meant to establish.”[280]

While popular constitutionalism in the abstract appeared to resonate during the Corona impeachment’s early weeks, people appeared to have difficulty taking the next mental step to declaring a constitutional value judgment by popularly elected officials superior to a Court decision in an impeachment context.

Dean Pangalangan wrote:

We need to respond to the fear of “lynch-mob populism,” the fear that impeaching Chief Justice Renato Corona today will weaken the constitutional protection for our rights in the future. …

That fear is anchored on the principle of “judicial supremacy,” the theory that the courts are “the surest expositors” of the Constitution, in contrast to common people who are caricatured as “creatures without reason, ever in thrall to irrational emotions.”[281]

Further:

“We have, therefore, reached the point as a nation where we must take action to save the Constitution from the Court and the Court from itself. …. We want a Supreme Court which will do justice under the Constitution and not over it.”

These words were uttered not by President Benigno Aquino III in 2011, but by US President Franklin Delano Roosevelt (FDR) in a fireside radio broadcast in 1937. The alarmists amongst us don’t remember much, and that is why their logic is bizarre. The Supreme Court hurriedly issues a TRO that would let Arroyo evade Philippine justice, and they chant “Hallelujah, the rule of law has triumphed!” Congress hurriedly uses its constitutional power to impeach, and they cry “bully” and “dictatorship.” We forget our history.[282]

Schlesinger implies that impeachment is hardly a purely judicial proceeding; “The Senate, in trying impeachment cases, was better equipped to be the judge of the law than of the facts.”[283] Yale Professor Charles Black adds:

[T]echnical rules of evidence were elaborated primarily to hold juries within narrow limits. They have no place in the impeachment process. … Senators are in any case continually exposed to “hearsay” evidence…. If they cannot be trusted to weigh evidence, appropriately discounting for all the factors of unreliability that have led to our keeping some evidence away from juries, then they are not in any way up to the job, and “rules of evidence” will not help.[284]

In the Corona trial’s opening days, it appeared that the Senate might assert primacy over the Supreme Court in impeachments. I argued that the Senate may present its own constitutional interpretation as part of its necessary task to define “betrayal of public trust” and “culpable violation of the Constitution” in order to judge the impeached against these standards:

The Coronavela has dispelled the great myth that only the Supreme Court may interpret the Constitution. After Senate President Juan Ponce Enrile quoted the Constitution to assert that the Senate is the sole authority in impeachment cases and only the military can stop the trial, no temporary restraining order (TRO) issued from the Supreme Court. After Sen. Franklin Drilon instructed the Supreme Court’s clerk of court to turn over Chief Justice Renato Corona’s statements of assets, liabilities and net worth (SALN), required by the Constitution to be disclosed as provided by law, Court Administrator Midas Marquez immediately announced the SALN could be disclosed. …

…

With the flexing of the Senate’s muscles … [t]he key defense argument that the Senate cannot scrutinize constitutional questions is now untenable. … The Senate threw a jab when it demanded the SALN; it may throw a knockout punch when it asserts the power to define “betrayal of public trust” and “culpable violation of the Constitution.”[285]

One notes the introduction of a former House Judiciary Committee Chair:

We do not assume the responsibility … of proving that the respondent is guilty of a crime…. We do assume the responsibility of bringing before you a case, proven facts, the reasonable and probable consequences of which are to cause people to doubt the integrity of the respondent presiding as a judge.[286]

This potential trajectory was soon derailed by two developments. First, as mentioned, the trial increasingly focused on assets Chief Justice Corona was allegedly hiding. Second, the Senate declined to press Senate President Juan Ponce Enrile’s earlier strong assertions of jurisdiction when a bank in which Corona had US dollar accounts obtained a temporary restraining order against the Senate subpoena regarding these dollar accounts, based on bank secrecy laws governing dollar deposits.[287] Fr. Bernas asked questions he answered no to:

[O]nly the Constitution is superior … Does the fact that the Constitution [identifies] the Senate as the sole judge of all impeachment cases make it superior to the Supreme Court in everything relating to impeachment?[288]

President Aquino himself called to uphold the Senate’s jurisdiction:

[T]he English words ‘sole’ and ’exclusively’ are clear … in referring to the power of the House to impeach and referring to the Senate’s right to try. So I don’t get the legal theory that all of a sudden the Supreme Court can involve itself in the impeachment process when the Constitution that we all swore to defend says that one part of the impeachment belongs exclusively to the House and the other to the Senate.[289]

Harvard Professor Raoul Berger noted:

From Story onward it has been thought that in the domain of impeachment the Senate has the last word; that even the issue whether the charged misconduct constitutes an impeachable offense is unreviewable, because the trial of impeachments is confided to the Senate alone. This view has the weighty approval of Professor Herbert Wechsler: “Who … would content that the civil courts may properly review a judgment of impeachment when article I, section 3 declares that the ‘sole power to try’ is in the Senate? That any proper trial of an impeachment may present issues of the most important constitutional dimension … is simply immaterial in this connection….”[290]

Black adds:

“[J]udicial review” has no part to play in impeachment proceedings. For now, it should be briefly pointed out that, if I am right, then Congress … rests under the very heavy responsibility of determining finally some of the weightiest of constitutional questions…. [W]e have to divest ourselves of the common misconception that constitutionality is discussable or determinable only in the courts…. We ought to understand, as most senators and congressmen understand, that Congress’s responsibility to preserve the forms and precepts of the Constitution is greater, rather than less, when the judicial forum is unavailable, as it sometimes must be.[291]

The crucial senatorial vote should be taken, and should be known to be taken, with full knowledge that there is no appeal. No senator should be encouraged to think he can shift to any court responsibility for an unpalatable or unpopular decision.[292]

Note, however, that Berger believes impeachment is subject to judicial review:

The “sole power to try” affords no more exemption from that doctrine than does the sole power to legislate….[293]

It was never intended that Congress should be the final judge of the boundaries of its own powers. … Astonishment would have greeted a claim of illimitable power made with respect to any function of Congress. Astonishment would have greeted a claim that the structure so carefully reared upon the separation of powers could be shaken to bits whenever Congress chose to resort to an unlimited power of impeachment. (internal citations omitted)[294]

I wrote that conceding authority to a Court order and opening a crack in the Senate’s supposed “sole” authority over impeachment would present future problems:

Having proclaimed that only the military can stop the impeachment trial, Enrile cannot afford to cede any authority. The high court now gauges the Senate’s resolve against its trial balloon TRO on the disclosure of Corona’s dollar accounts. …

When the Supreme Court blocked Chief Justice Hilario Davide Jr.’s impeachment in 2003, it claimed it could interpret the rules governing impeachment even though it had no power to decide the verdict. Impeachment is a political process in part because there are few restrictions and even the very definitions of betrayal of public trust and culpable violation of the Constitution are left to senators’ judgment. Imagine if the ongoing debate on the standard to convict crystallizes, whether into betrayal “beyond reasonable doubt,” betrayal with “overwhelming preponderance of evidence,” or betrayal with “substantial evidence.” Might the Supreme Court rule that the Senate’s verdict failed to meet its own standard and nullify it as “grave abuse of discretion”? Idle legal minds can craft infinite outlandish pretexts.

The defense insidiously claims that it has properly raised questions of law before the Supreme Court. This is like justifying a rule book change that forces a referee to count shots in only one side’s basket. Questions of law are woven into the impeachment trial’s fabric, and even if the Supreme Court does not outright halt the trial, a deceptively narrow order may leave the impeachment court with nothing to decide. Enrile need not suffer the travesty of having another court headed by the defendant himself shape his trial; every textbook tells the defense to raise its issues before the impeachment court when it has convened.[295]

With the Senate unwilling to resist a restraining order against its own subpoena, it appears highly unlikely as of this writing that it would explicitly present a constitutional interpretation at odds with a Supreme Court decision. The opposite of this result might have been the Senate discarding strict notions of evidence and individual culpability and making a policy-driven decision to remove Chief Justice Corona on the purely legal ground that he was a midnight appointee. De Castro v. Judicial and Bar Council would stand, albeit severely discredited, because the Senate verdict would be pursuant to the power to impeach and remove, not the power of judicial review. A policy-driven or symbolic removal as opposed to one pursuant to a finding of individual guilt is supported by history; Berger notes that impeachment was “essentially a political weapon”[296] used to make a king’s advisers accountable.

One might argue that some eminent American scholars have written against the resort to impeachment over differences in constitutional interpretation or political ideology. Schlesinger, for example, wrote:

There was broad agreement, among scholars at least, on doctrine. Impeachment was a proceeding of political nature, by no means restricted to indictable crimes. On the other hand, it was plainly not to be applied to cases of honest disagreement over national policy or over constitutional interpretation, especially when a President refused to obey a law that he believed struck directly at the presidential prerogative. Impeachment was to be reserved, in Mason’s phrase at the Constitutional Convention, for “great and dangerous offenses.”[297]

Schlesinger wrote in the President’s context, however, and Berger wrote that the American Founding Fathers were “exclusively concerned with the President”[298] when the provisions of the United States Constitution on impeachment were drafted. One doubts the “honest disagreement” contemplated extends to a contravention of tradition and established jurisprudence as seen in De Castro v. Judicial and Bar Council and Biraogo v. Philippine Truth Commission. The argument that Congress cannot be left to exercise unlimited power fails when one instead hands unlimited power over the Constitution to the Supreme Court. Choosing between these two branches, I wrote analyzing the legitimacy of the canvass of presidential election results that there can only be one choice:

Given human frailties, Congress thus plays a legitimizing role in the most essential of democratic exercises, and by its very nature, it is the only body capable of doing so.[299]

Parenthetically, the Court also rebuffed a prosecution request for certain of its records due to the separation of powers and interdepartmental comity.[300] The Senate did not pursue this matter.

J. The Presidency as a Bully Pulpit

If even the weighty artillery of impeachment does not suffice to contest what the President fears are improvident exercises of the judicial power, the last of his residual powers is resort to the presidency as a bully pulpit, or what Professor Laurence Tribe describes as the ability to command national attention. This has been described:

Justice Robert Jackson’s astute observation in Youngstown Sheet & Tube Co. v. Sawyer on the unique nature of the presidency, has been widely quoted:

Executive power has the advantage of concentration in a single head in whose choice the whole Nation has a part, making him the focus of public hopes and expectations. In drama, magnitude, and finality, his decisions so far overshadow any others that almost alone he fills the public eye and ear. No other personality in public life can begin to compete with him in access to the public mind through modern methods of communications. By his prestige as head of state and his influence upon public opinion he exerts a leverage upon those who are supposed to check and balance his power which often cancels their effectiveness.

Correspondingly, the unique nature of the office affords the President the opportunity to profoundly influence the public discourse, not necessarily through the enactment or enforcement of laws, but specially by the mere expediency of taking a stand on the issues of the day. Indeed, the President is expected to exercise leadership not merely through the proposal and enactment of laws, but by making such vital stands. U.S. President Theodore Roosevelt popularized the notion of the presidency as a “bully pulpit”, in line with his belief that the President was the steward of the people limited only by the specific restrictions and prohibitions appearing in the Constitution, or impleaded by Congress under its constitutional powers.[301]

The Presidency, in short, can become more than the sum of its powers if only because of the gravitas and influence of being the country’s focal point. The only long term way for a President to resist a Court is to engage it on its own battlefield of reason and pit one institution’s moral capital against another’s. If “the Justices are inevitably teachers in a vital national seminar,”[302] the Presidency is a powerful platform from which to join and possibly dominate the debate.

President Aquino, based on media reports, has attempted to do so in relation to the Corona impeachment trial, at times arguing the very text of the Constitution. Although this language may not yet be mainstream in the Philippines, he would not be alone in broader experience. Abraham Lincoln, for example, voiced opposition to Dred Scott v. Sandford,[303]which ruled that slaves were not citizens of the United States, and argued that beyond the immediate parties to the case:

We nevertheless do oppose [Dred Scott] … as a political rule which shall be binding on the voter, to vote for nobody who thinks it wrong, which shall be binding on the members of Congress or the President to favor no measure that does not actually concur with the principles of that decision.[304]

Franklin Delano Roosevelt pushed the “New Deal” and a modern government economic role against an extreme version of laissez-faire then prevailing in judicial thinking. FDR directly debated decisions’ reasoning in public, catching media fancy with witty criticism such as, “We have been relegated to the horse-and-buggy definition of interstate commerce.”[305] More recently, at his 2010 State of the Union Address and in the presence of US Supreme Court Justices, President Barack Obama vocally criticized a decision on corporate spending in political campaigns that “reversed a century of law to open the floodgates for special interests – including foreign companies – to spend without limit in our elections.”[306]

The President may readily deploy his entire array of powers from the bully pulpit. As mentioned, Thomas Jefferson used opposed the Alien and Sedition Act of 1801 by pardoning those found guilty under it and Andrew Jackson vetoed the charter of the Bank of the United States out of disagreement with an underlying Supreme Court doctrine.

The powerful pulpit aside, other stakeholders need to work to elevate the level of debate. In particular, the media and the academe are crucial to translating high level constitutional theory into everyday values.

Conclusion

Given its constitutional history, one imagines that the Philippines is a prime potential victim for what Judge Robert Bork calls “the ‘American disease’ – the seizure by judges of authority properly belonging to the people and their elected representatives.”[307]

In 2006, at an informal session with Professor Mark Tushnet organized by my classmate Kasia Klaczynska, he asked each of us to share the most extreme exercise of judicial review in our home countries. I ventured that in 2001, there were large and prolonged demonstrations after then President Joseph Estrada’s impeachment trial was aborted, which ended after the Justices of the Supreme Court walked into the center of the crowds at EDSA and swore in Vice-President Gloria Macapagal-Arroyo as President.[308] The exercise ended as none of my dumbstruck classmates could offer a comparably outlandish anecdote.

Immediately before this article was finalized I sat in Professor Frank Michelman’s last lecture in comparative constitutional law on April 20, 2012. He mentioned that the insertion of language regarding economic policy into constitutions gave some courts in developing countries the textual basis to implement broad liberal economic policies by judicial fiat. He was quite surprised to hear that the Philippine Court acted in a similar manner with nationalist economic provisions but fortunately backed down when asked to rule on the Philippines’ entry into the World Trade Organization.

Filipino lawyers have taken for granted the Supreme Court’s relative power in our separation of powers. In addition to the “expanded certiorari” power explicitly given to it under the 1987 Constitution, the Court historically enjoyed the greatest public support and was perceived as democracy’s last bastion. Our Presidency and Congress were severely damaged after the perceived partisan maneuvering during the Estrada impeachment trial and the alleged massive corruption that characterized President Arroyo’s extended tenure; in contrast, Chief Justice Davide’s calming influence during and in the aftermath of the Estrada trial, Justice Carpio’s barricade of charter change[309] and Chief Justice Puno’s extrajudicial crusade against extrajudicial killings[310] made judicial restraint an unthinkably unpopular philosophy both in legal academia and the mainstream media. The constitutional design has always presumed a “good” Supreme Court checking a “bad” President and less thought was given to a partisan Court straining the limits of its power.

This article has reviewed the recent experience in the ongoing Corona impeachment trial and how difficult it is for a popular President Aquino to challenge allegedly partisan decisions with dubious bases such as De Castro v. Judicial and Bar Council, which upheld the midnight appointment of a Chief Justice after the presidential elections but before the new president’s term, and Biraogo v. Philippine Truth Commission, which used the human rights doctrine of equal protection to shield former President Arroyo from prosecution for corruption. Surveying judicial power in practice under the 1987 Constitution, one summarizes:

1) The power of judicial review was textually reinforced into the expanded certiorari power, and may strike down acts constituting grave abuse of discretion even if technically not unconstitutional;

2) The political question doctrine, which marks the outer bound of a political branch’s power relative to judicial review, is all but nonexistent;

5) The 1987 Constitution’s sheer length presents near infinite textual hooks to anchor an exercise of judicial power, and international law sources provide even more hooks;

6) The rulemaking power, introduced in 2007, expands judicial power even further, beyond the traditional case and controversy restraint of judicial review; and

7) An entrenched deference to judicial supremacy in the Philippines makes judicial power even broader in practice.

Against the judicial power, one surveys presidential power:

1) The President enjoys no special preference relative to judicial review in the exercise of his general executive power;

2) The President has numerous implied powers;

3) The President exercises broad power to control executive instrumentalities and a government body not legislative or judicial or part of an independent constitutional body is deemed executive;

4) As Commander-in-Chief, the President faces substantial post-martial law restrictions should he declare martial law or a suspension of the writ of habeas corpus, but enjoys substantial deference using his “most benign” power of “calling out” the armed forces;

5) The President enjoys substantial deference in foreign affairs, including entry into executive agreements that do not require Senate ratification;

6) The President enjoys latitude in focusing his powers in an emergency and declaring a “state of national emergency” but true emergency powers require congressional authorization;

7) The President enjoys substantial deference in making appointments;

8) The President enjoys substantial deference in granting pardons;

9) The President enjoys substantial deference in exercising a veto;

10)The President may attempt to influence Congress to initiate and try a Justice in impeachment but this has not been an effective venue for challenging judicial doctrine in Philippine experience; and

11)The President enjoys a powerful, implied bully pulpit by being the nation’s focal point from which he may attempt to influence the country.

The ready conclusion is that the constitutional design favors aggressive judicial review as a general rule and recognizes narrow areas of deference to presidential power as an exception. The only long term way for a popular president to resist a possibly partisan Court in this framework is to use his bully pulpit to challenge the Court’s very reasoning following the likes of Lincoln and Roosevelt. Disinterested stakeholders such as the media and academe are crucial to elevating the level of debate necessary to make such a challenge possible, beyond the present default to judicial supremacy in the Philippines. People must realize that they cannot fear another martial law regime only to ignore the more subtle impunity embodied in De Castro v. Judicial and Bar Council and Biraogo v. Philippine Truth Commission.

One consolation for an embattled President is that the judiciary’s true strength lies in its moral strength, holding neither purse nor sword, and its more extreme powers such as the rulemaking power appear to be difficult to exercise absent the kind of clear popular support Chief Justice Puno did. For all the scholarly literature on the Court’s greater “mystic function,” a President cannot forget that he is equally capable of mustering moral strength and firing the national imagination. As Schlesinger wrote:

The effective means of controlling the Presidency lay less in law than in politics. For the American President ruled by influence; and the withdrawal of consent, by Congress, by the press, by public opinion, could bring any President down. The great Presidents understood this.[311]

One must always recall judicial review’s place in democracy as a countermajoritarian enigma and its presumption that citizens remain active participants. An abdication of this collective role to the judiciary means “the people thus lose the political experience, and the moral education and stimulus that comes from fighting the question out in the ordinary way, and correcting their own errors. The tendency of a common and easy resort to this great function, now lamentably too common, is to dwarf the political capacity of the people, and to deaden its sense of moral responsibility.”[312] As Judge Learned Hand put it, “it would be most irksome to be ruled by a bevy of Platonic Guardians, even if I knew how to choose them, which I assuredly do not.”[313]

As recent experience has shown, the level of discourse sorely needs to be elevated in impeachment contexts, and the process must transcend armchair lawyering into an opportunity for elected officials to represent their constituents in affirming or rejecting constitutional interpretation. As I proposed:

The cruelest fiction is that impeachment cannot ask a justice to account for how human rights have been rewritten. This is a fiction maintained by a legal elite trained to discount the electorate as a whimsical mob and aggrandize law as a secular religion where “equal protection” is reduced to an incantation. To apply the designated check and balance of impeachment on the Supreme Court to challenge its doctrine has never meant to appeal a case by referendum. It simply means that, beyond who won and who lost, the sovereign people have the ultimate duty to rebuke the human rights doctrine they disbelieve. It simply means the Constitution’s ultimate interpretation lies not with the lawyer who wrote it but with the ordinary citizen who lives it, not with legal technicalities blown out of proportion but with resonance in daily life.

It simply means that the sovereign people, through their elected representatives, have every right in our democracy to remind unelected justices that the Constitution is too important to be left to them alone and that they have the ultimate right to take it back if they are unable to teach their children that Arroyo is a human rights victim.[314]

Schlesinger ended his classic discourse:

A constitutional Presidency, as the great Presidents had shown, could be a very strong Presidency indeed. But what kept a strong President constitutional, in addition to checks and balances incorporated within his own breast, was the vigilance of the nation. Neither impeachment nor repentance would make much difference if the people themselves had come to an unconscious acceptance of the imperial Presidency. … As Madison said long ago, the country could not trust to “parchment barriers” to halt the encroaching spirit of power. In the end, the Constitution would live only if it embodied the spirit of the American people. (internal citations omitted)[315]

One argues that in the post-1987 context of an already institutionalized wariness of an imperial Presidency, the same reasoning should equally apply to an imperial Judiciary and “the most dangerous branch.”[316]

This article continues several thoughts from and is based on material from his previous articles, particularly Oscar Franklin Tan, The New Philippine Separation of Powers: How the Rulemaking Power May Expand Judicial Review Into True Judicial Supremacy, 83 Phil. L.J. 868 (2009) and Oscar Franklin Tan, The 2004 Canvass: It is Emphatically the Province and Duty of Congress to Say What Congress Is, 79 Phil. L.J. 39, 75 (2004).

This author also thanks Darwin Angeles for his invaluable editorial assistance and advice regarding research, as well as the following who reviewed drafts of this article: Leandro Angelo Aguirre, Bryan Dennis Tiojanco, Gerald Joseph Jumamil, Johann Carlos Barcena, and Nathan Marasigan. All errors remain the author’s alone.

First Violeta Calvo-Drilon-ACCRALAW Scholar for Legal Writing (2004). First Freshman and First Two-Time Awardee, Justice Irene R. Cortes Prize for Best Paper in Constitutional Law (2002, 2005). Professor Myres S. McDougal Prize for Best Paper in Public International Law and Jurisprudence (2005). First Awardee, Justice Vicente V. Mendoza Prize for Best Critical Analysis of a Supreme Court Decision (2005). First Awardee, Professor Gonzalo T. Santos, Jr. Prize for Best Paper in Securities Law (2005). First awardee, Professor Bienvenido C. Ambion Prize for Best Paper in Private International Law (2004). Professor Esteban B. Bautista Prize for Best Paper in Intellectual Property Law (2005). Awardee, Professor Araceli T. Baviera Prize for Best Paper in Civil Law (2003).

[3] Raul Pangalangan, Commentary: Arroyo’s pleas political, not human rights issue, Phil. Daily Inquirer, Nov. 18, 2011, at A1, available at http://opinion.inquirer.net/17515/arroyo%E2%80%99s-pleas-political-not-human-rights-issue. Having been shared on social media more than 21,000 times based on the Inquirer website’s count, the column was one of the paper’s most widely read op-eds of 2011.

[4] Tan, The New Philippine Separation of Powers, supra note *, at 931.

[6] This thought began inTan, The New Philippine Separation of Powers, supra note *. Updated discussions from previous articles have been incorporated in this article to present an integrated discussion to the reader.

[24] In re Letter of the UP Law Faculty entitled “Restoring Integrity: A Statement by the Faculty of the University of the Philippines College of Law on the Allegations of Plagiarism and Misrepresentation in the Supreme Court”, A.M. No. 10-10-4-SC, Oct. 19, 2010. The author enjoyed dark humor from some of the Facebook pages of the professors concerned and Romel Bagares during the entire episode.

[44] The Court has on rare occasions still explicitly recognized political questions. “[A]lthough the Constitution reserves to the Supreme Court the power to review the sufficiency of the factual basis of the proclamation or suspension in a proper suit, it is implicit that the Court must allow Congress to exercise its own review powers, which is automatic rather than initiated. … The constitutional validity of the President’s proclamation of martial law or suspension of the writ of habeas corpus is first a political question in the hands of Congress before it becomes a justiciable one in the hands of the Court.” Fortun v. Macapagal-Arroyo, G.R. No. 190293, Mar. 20, 2012.

[85] Symbolic results are not necessarily meaningless of course. Brown v. Board of Education, consider,was widely disregarded by schools in the southern United States in the decade following its promulgation. Mark Tushnet, Taking The Constitution Away From the Courts 136 (1999).

[90]Id. Fortun also ruled that the Court should first allow Congress to review a declaration of martial law’s factual bases. “The constitutional validity of the President’s proclamation of martial law or suspension of the writ of habeas corpus is first a political question in the hands of Congress before it becomes a justiciable one in the hands of the Court.” Id.

[104] Professor Mark Tushnet uses the illustrations of a “thick” constitution of detailed but uncontroversial provisions and a “thin” constitution of fundamental principles. Consider that such an illustration may be less useful in the Philippines in that the lengthier Constitution contains many pregnant phrases and constitutionalized aspirations and ideals, rendering the “thin” constitution quite bloated. Mark Tushnet, Taking the Constitution Away From the Courts 9-12 (1999).

[105] Dean Ely lamented the “transparent failure of the dominant mode of ‘noninterpretivist’ review” in his milieu. John Hart Ely, Democracy and Distrust 41 (1980).

[111] Tatad v. Sec. of Energy, G.R. No. 124360, 281 SCRA 330, 379, Nov. 5, 1997. (Panganiban, J., concurring), quoted in Tan, The 2004 Canvass, supra note *, at 93. “To our capitalist and influential countrymen, it is but right that you express solidarity with the poor in times of need. Let us not emphasize a lack of profit or temporary losses. To unscrupulous and heartless businessmen: our countrymen are in dire straits. Listen to your consciences!”

[125] Philip Morris, Inc. v. Court of Appeals, G.R. No. 91332, 224 SCRA 576, 593 (1993). “Under the doctrine of incorporation … rules of international law are given a standing equal, not superior, to national legislation.” For a recent and interesting commentary on the incorporation clause, see Merlin Magallona, An Essay on the Incorporation Clause of the Constitution as a Juridical Enigma, 35 J. Int. Bar Phil. 18 (2010).

[132] Robet Bork, Coercing Virtue: The Worldwide Rule of Judges 24 (2003). At the extreme point of Judge Bork’s criticism, he points out how British Prime Minister Margaret Thatcher and the Prince of Wales were charged in the United States of violating human rights in Northern Ireland and Libya and how the International Court of Justice once, unsuccessfully, ordered the United States Supreme Court to “to take all measures at its disposal” to stay the execution of a German national sentenced to death by an Arizona jury during a murder trial. Id. at 27, 34.

[137] Parenthetically, courts of course take more than the case at hand into account. As articulated by Professor Herbert Wechsler, “[T]he principle of the decision must be viable in reference to the applications that are now foreseeable…. Nothing less will satisfy the elements of generality and of neutrality implicit in the concept of a legal judgment as distinguished from the fiat of a court.” Herbert Wechsler, The Nature of Judicial Reasoning, in Law and Philosophy: A Symposium 297-98 (Sidney Hook ed.1964).

The prosecution discussed only articles 2, 3 and 7 of its complaint. Article 3 involved the recall of the Supreme Court decision favoring labor unions in Flight Attendants and Stewards Association of the Philippines (FASAP) v. Philippine Airlines allegedly after Philippine Airlines counsel Estelito Mendoza wrote a letter to the Court and involved no doctrinal issue. G.R. No. 178083, Jul. 23, 2008; In re Letters of Atty. Mendoza, A.M. No. 11-10-1-SC, Oct. 04, 2011. Article 7 accused Corona of highly partisan action in the issuance of a temporary restraining order that would have allowed former President Arroyo and her husband to leave the country and likewise involved no doctrinal issue. Minute Resolution dated Nov. 18, 2011 in Macapagal-Arroyo v. De Lima, G.R. No. 199034 and subsequent Court resolutions.

[171] Const. art. VII, §§ 1, 17. Note, however, that the President only exercises supervision over local government units. See Marcos v. Manglapus, G.R. No. 88211, 177 SCRA 668, 689, Sep. 15, 1989 for an enumeration of executive powers explicit in article VII.

[183] David v. Macapagal-Arroyo, G.R. 171396, 489 SCRA 161, 242, May 3, 2006 (“President Arroyo found it necessary to issue PP 1017. Owing to her Office’s vast intelligence network, she is in the best position to determine the actual condition of the country.”).

[191]Oscar Franklin Tan, Commentary: Intellectual impunity vs the right to bikini photo, Phil. Daily Inquirer, Apr. 2, 2012, available at http://opinion.inquirer.net/26129/intellectual-impunity-vs-the-right-to-bikini-photos. The essay was one of the most widely read Inquirer op-eds in 2012 as of its publication.

[228] 3 SCRA 351 (1961). Parenthetically, Eastern Sea Trading made its point by noting that the “Parity Rights” with the United States was previously an executive agreement not concurred in by the US Senate, before these were appended to the Philippine Constitution in an ordinance.

The prosecution discussed only articles 2, 3 and 7 of its complaint. Article 3 involved the recall of the Supreme Court decision favoring labor unions in Flight Attendants and Stewards Association of the Philippines (FASAP) v. Philippine Airlines allegedly after Philippine Airlines counsel Estelito Mendoza wrote a letter to the Court and involved no doctrinal issue. G.R. No. 178083, Jul. 23, 2008; In re Letters of Atty. Mendoza, A.M. No. 11-10-1-SC, Oct. 04, 2011. Article 7 accused Corona of highly partisan action in the issuance of a temporary restraining order that would have allowed former President Arroyo and her husband to leave the country and likewise involved no doctrinal issue. Minute Resolution dated Nov. 18, 2011 in Macapagal-Arroyo v. De Lima, G.R. No. 199034 and subsequent Court resolutions.

[279] Speech delivered at University of the Philippines National College of Public Administration and Governance, Jan. 9, 2012, quoted in Cathy Yamsuan, Corona verdict not solely evidence-based, says Trillanes, Phil. Daily Inquirer, available at http://newsinfo.inquirer.net/124755/corona-verdict-not-solely-evidence-based-says-trillanes.

[290] Berger, supra note 286, at 104. Berger further notes that impeachment under the United States Constitution was originally under the Supreme Court but later transferred to the Senate as “no other tribunal than the Senate could be trusted.” Id. at 113.

UPHOLDING EQUITY: AN ANALYSIS OF THE REQUISITES FOR THE INSTITUTION OF DERIVATIVE ACTIONS*

The Board of Directors are tasked to exercise all the powers of the corporation and to conduct its business.[1] They owe the corporation the duty of obedience, diligence and loyalty[2] and occupy a position of trust for the benefit of all the stockholders, and not merely the controlling interest.[3] Thus, when corporate directors breach their fiduciary duties, the aggrieved minority may go to the courts to hold them accountable and for redress of a wrong done to the corporation.[4] This suit is called a derivative suit.

A derivative suit is a suit brought by the stockholders, for and on behalf of the corporation, for an injury done to it. It is a remedy established and recognized by the courts on equity considerations.[5] Ultimately, derivative suits become a battle between the majority and minority stockholders, with the latter asserting a right granted to the corporation, and by analogy, granted to them as stockholders so they could defend themselves against the abuses of the majority.

Since battle-lines are clearly drawn out in derivative suits, there should be a procedural rule that will give credence and stay true to the origins of the privilege to bring a derivative action, i.e., equity. This paper seeks to examine whether the rules on derivative suits as provided under Rule 8 of the Interim Rules of Procedure Governing Intra-Corporate Controversies[6]uphold the principle of equity, the very foundation of the origins of derivative actions. To do this, this paper looks at the previous cases involving derivative actions decided by the Supreme Court to trace the development of these rules.

The first part seeks to examine the origins of the concept in common law jurisdictions and its development in the Philippines. The next part of the article discusses each requisite, outlining the intent behind their inclusion. It concludes with an analysis of the effectiveness of these requisites in bringing ensuring redress principally, to the corporation, and incidentally, to the stockholders.

I. Origins and Concept of Derivative Actions

Historical background: English and American development

The right of a stockholder to sue was recognized in England as early as 18th century, when joint stock corporations are the usual business organizational form resorted to in raising capital from many investors.[7] The law on partnership and trusts governed management conduct and policies, and directors were characterized as trustees of the corporation.[8] Due to the growth in size of these kinds of organizations and diverging interests of management and shareholders, problems on enforcing substantive law emerged.[9] The English courts recognized the inadequacy of the existing legal procedures to redress management abuses and supplied a remedy based on equity. [10] This led to the recognition of representative suits filed by shareholders against management or directors.[11]

The early representative suits were filed by shareholders on behalf of other members instead of the corporation, but the plaintiffs usually seek relief for the benefit of the corporation.[12] InPreston v. The Grand Collier Dock Co., a shareholder sought judicial intervention to force the collection of the consideration of the subscribedshares that the directors of the corporation. While the plaintiff sued in behalf of all other shareholders, they argued that “it is merely a mode of expressing that he sues in the general right.” This statement implies that there is a recognition that the plaintiff is suing for the benefit of the corporation itself, and not for the sole benefit of the suing stockholders. In another case[13], decided a year after Preston, the court entertained a suit filed by a group of shareholders, who, like the plaintiff in Preston, sued on behalf of themselves and all other shareholders, but did not ask for the recovery of the money misappropriated by the directors for themselves. Instead, they prayed for it to be restored in the company’s treasury. This illustrates the growing recognition of the right of stockholders to sue for the benefit of the corporation, although denominated as representative suits during this time.

The equity court imposed the first limitation on the shareholders’ right to sue in the case of Foss v. Harbottle,[14]involving a suit by two minority shareholders of the Victoria Park Company against the directors of the said corporation. The directors allegedly misappropriated the corporation’s assets when they sold their own lands to the corporation at an excessive price. The court dismissed the suit, on the ground that the injury alleged is suffered by the corporation and thus, it is the corporation who has the standing to sue. This ruling in Foss was later termed as the “proper-plaintiff principle”.[15]The court also established that they cannot intervene when the majority may ratify the matter raised in the action. Although Foss presented a limitation to the rights of minority stockholders, it did influence the development of derivative actions. Through an obiter, the court intimated that individual stockholders may sue in cases of injury to the corporation by some of its members, when no adequate remedy remained. This declaration later became the concept of a derivative suit.

In the United States, court intervention in intra-corporate disputes was originally predicated on equity, designed to protect minority shareholders from fraud, just like in England. In Robinsons v. Smith,[16] a bill was brought by several shareholders holding minority interest in the New York Coal Company, charging the directors of the corporation with fraud. They alleged that the directors were misappropriating the funds of the company by investing in the stocks of several banking corporations for private purposes, which is in violation of their duty. Similar to the early English courts, the Chancery Court of New York regarded the directors of the corporation as trustees of the corporate funds and held that “no injury the stockholders may sustain by a fraudulent breach of trust can, upon the general principles of equity, be suffered to pass without a remedy.” The court, however, allowed the demurral on the ground that the corporation should have been either a complainant or one of the defendants.

It is interesting to note however, that the fact that the corporation was regarded as a necessary party in early shareholders’ suits did not necessarily mean that the right of shareholders to sue was already conceived as derivative as it is understood now.[17]Subsequent cases held that the rationale behind the rule that the corporation is a necessary party is to prevent double recovery.[18]Thus, the early shareholders’ suits were more regarded as individual or class action for the protection of their rights, with the corporation being mere recipient of whatever recovery sought by the plaintiffs.[19] The contemporary concept of derivative suits where the cause of action properly belongs to the corporation and the stockholders sue merely in a secondary capacity was concretized in the stream of cases involving third party defendants that are outsiders to the corporation.[20]

Forbes v. Whitlock[21]is the first illustrative case of such kind of litigation. The plaintiff-shareholders, in his individual capacity, sought to set aside a sale made to the third party defendant on the ground of fraud. It was however held that the rights being asserted refers to and belongs to the corporation as a separate entity, and it should have been asserted in the corporate name. Thus, the failure to implead the corporation as a party resulted in the inability to seek remedial measure from the courts.

In the landmark case of Dodge v. Woolsey,[22] a shareholder tried to enjoin the collection of a tax assessed by the State of Ohio on the Commercial Branch Bank of Cleveland for being unconstitutional. The tax collector, the directors of the bank and the bank itself were made defendants. The complainant brought the suit as a shareholder of the said bank, alleging that he had asked the directors of the bank to file such suit but they refused to do so. The court allowed the departure from the then general rule thata suit of such nature should be brought in the name of the corporation, saying that they did not see it necessary in view of the demand made by the plaintiff to the directors and the latter’s refusal to heed to it.The court, in upholding their jurisdiction over the action, saw the refusal of the directors to sue as a disregard of duty than a mere error of judgment.

In cases involving outsider defendant, the shareholders’ right to sue based on breach of trust was not sufficient to justify judicial intervention since it is not just the trustee-directors that are being sued.[23]From the foregoing, there appeared to be two concepts affecting the shareholders right to sue:[24] first, that the corporation is a separate entity and its rights must be asserted in its name; and second, that the trust doctrine is paramount in corporate relations, and a breach thereof gives shareholders the rights to be protected from any misfeasance, malfeasance and nonfeasance of those to whom the trust was reposed.[25]Giving such suit a derivative nature made it possible to marry these two concepts.[26]

In 1882, the US Supreme Court noted the growth in corporate litigation since Dodge v. Woolsey, and reconsidered the Dodge ruling in Hawes v. City of Oakland.[27] They thus found it necessary to establish limitations on derivative suits. Hawes was a suit filed by a shareholder of a water company against the company, the directors and the City of Oakland. The plaintiff alleged that the company was furnishing water to the City beyond what is required by law, to the injury of the shareholders and the company. The case was dismissed by the Court on the ground that the plaintiff had no standing to sue. In arriving at this conclusion, the Court discussed that a stockholder has the power to bring a suit founded on the right of action belonging to the corporation under the following circumstances:

Some action or threatened action of the managing board of directors or trustees of the corporation which is beyond the authority conferred on them by their charter or other source of organization;

Or such a fraudulent transaction completed or contemplated by the acting managers, in connection with some other party, or among themselves, or with other shareholders as will result in serious injury to the corporation, or to the interests of the other shareholders;

Or where the board of directors, or a majority of them, are acting for their own interest, in a manner destructive of the corporation itself, or of the rights of the other shareholders;

Or where the majority of shareholders themselves are oppressively and illegally pursuing a course in the name of the corporation which is in violation of the rights of other shareholders and which can only be restrained by the aid of a court of equity.[28]

The Court in Hawes added that to have standing to sue, the shareholder must show that he has exhausted all his remedies within the corporation (i.e. making a request to the directors or management, and consulting with the other shareholders) and should he fail to do so, he should identify the reasons why it was not done or the unreasonableness of doing so.[29] The facts which gave rise to the controversy and the steps taken by the plaintiff in protecting his rights must be alleged with particularity.[30] Moreover, an allegation of the plaintiff’s status as a shareholder at the time of the transactions of which he complains of, or that his shares have devolved on him since by operation of law, should also be included in the complaint.[31] He must also allege that the suit is not a collusive one.[32]

The requirements laid down in Hawes[33] will eventually become the jurisprudential basis for the procedural requirements laid down by courts in instituting derivative actions.

Development in the Philippines

The landmark case which recognized the right of the stockholders to sue on a derivative action is Pascual v. Orozco[34] decided by the Court as early as 1911.This case was brought by plaintiff Candido Pascual, a stockholder of the banking corporation Banco-Español Filipino, in behalf of himself and for the benefit of the bank and other stockholders, against the directors of said bank who allegedly appropriated for themselves the profits of the bank in fraud of the other stockholders. The lower court sustained the demurrer of the defendants on the ground that the facts alleged do not constitute a cause of action. On appeal to the Supreme Court, the right of the plaintiffs to sue was recognized and upheld. Accordingly, “it is clear that the plaintiff, by reason of the fact that he is a stockholder in the bank (corporation) has a right to maintain a suit for and on behalf of the bank, but the extent of such a right must depend upon when, how, and for what purpose he acquired the shares which he now owns.”

The Court in Pascual recognized that the Corporation Law and the Code of Civil Procedure then in force are silent on the right of shareholders’ to sue for a cause of action that devolves to the corporation. The general rule is that the corporation can bring a suit through its Board of Directors. However, the Court in Pascual took cognizance of the suit on the ground of equity. Accordingly, stockholders are given standing to sue on behalf of the corporation when the people entrusted to manage the affairs of the corporation are themselves guilty of the mismanagement and it would be futile to seek redress from them. The Court thus relied on American precedents in affirming the validity of derivative suits in this jurisdiction and adopted the regulations on derivative suits already recognized by American jurisprudence.

In San Miguel v. Kahn,[35]the Court made a definitive summary on the requisites necessary to maintain a derivative suit based on established jurisprudence:

The party bringing suit should be a shareholder as of the time of the act or transaction complained of, the number of his shares not being material;

He has tried to exhaust intra-corporate remedies, i.e., has made a demand on the board of directors for the appropriate relief but the latter has failed or refused to heed his plea; and;

The cause of action actually devolves on the corporation, the wrongdoing or harm having been, or being caused to the corporation and not to the particular stockholder bringing the suit.

From the foregoing, it is clear that the rules laid down by the Philippine Supreme Court followed the rules stated by the U.S. Supreme Court in Hawes.

These suits in equity were normally lodged in regular courts, but upon the effectivity of PD 902-A[36] on March 11, 1976, the jurisdiction over intra-corporate controversies was vested in the Securities and Exchange Commission. In Philex Mining vs. Reyes,[37] the Court explained the meaning of intra-corporate controversy as “one which arises between a stockholder and the corporation. There is no distinction, qualification, nor any exemption whatsoever. The provision is broad and covers all kinds of controversies between stockholders and corporations.”

Thus, allegations of fraud and breach of the fiduciary duties of corporate officers and/or the majority shareholders in derivative actions are intra-corporate controversies falling within the exclusive jurisdiction of the SEC. The transfer of jurisdiction aims to expedite the resolution of the controversy and place the matter in the hands of experts.[38] Intra-corporate controversies filed before the courts were thus dismissible on the ground of lack of jurisdiction. However, Republic Act 8799 transferred this jurisdiction to Regional Trial Courts acting as commercial courts.[39]

Nature of a Derivative Action: The Corporation as the Real Party in Interest

A derivative suit must be distinguished from an individual suit:

Suits based on breaches of the directors’ fiduciary duties of care and loyalty under state law, such as suits based on grossly negligent mismanagement, waste of corporate assets, excessive compensation, usurpation of corporate opportunity, and on general self-dealing, are actionable only as derivate suits. On the other hand, suits for the deprivation of shareholders’ voting rights, preemptive rights, or rights to inspect the corporation’s books and records, suits to compel the declaration of dividends, and suits alleging that the directors/officers fraudulently induced the shareholder to sell stock, are generally treated as direct actions.[40]

Thus, a suit to inspect the corporate documents of the corporation is properly an individual suit,[41] while a stockholder suing for the mismanagement by the corporate officers resulting in an injury to the corporation is a derivative action.

The stockholders suing on a derivative cause of action is not bringing the suit for their benefit, but for the benefit of the corporation and any benefit recovered by the stockholder must redound to the benefit of the corporation since the cause of action actually belongs to it.[42] They may not thus bring an action to seek damages resulting from the mismanagement of the corporate officers for their own benefit.[43] The stockholders may not claim monetary awards granted, otherwise, this would result in a distribution of assets of the corporation even prior to its liquidation.[44]

Similar to Hawes, the Philippine Supreme Court also recognized the need to aver with sufficient particularity the acts complained of which resulted in or will result to an injury to the corporation occasioned by the negligence, mismanagement or fraud of its directors. Thus, in Reyes vs. Tan,[45] the Court held that the allegation that the officers of the corporation permitted the importation of textiles in violation of its Charter is a clear indication of fraud, which justified the derivative action filed by the stockholder-plaintiff. In Republic Bank vs. Cuaderno,[46] the Court reversed the order of dismissal by the lower court on the ground that the allegations in the complaint are sufficient to make out a cause of action for a derivative action. Accordingly, the plaintiff is not suing to vindicate his rights, but to seek redress for an injury caused to the corporation by the illegal disbursement of funds.

The requirement that the cause of action actually devolves on the corporation and not to the stockholder bringing the suit affirms the nature of a derivative suit. In a derivative suit, the corporation is the real party in interest and the stockholder filing the suit is merely a nominal party. Thus, a suit seeking for the annulment of the sale of shares of stock by the directors of the corporation on the ground that it violated their pre-emptive right is not a derivative action since the suing stockholders are alleging and vindicating their own individual interests, and not that of the corporation.[47]On a later case involving a prayer for the issuance of shares of stock to the rightful owners, nullification of shares of stock previously issued, reconveyance of property impressed with trust, accounting, removal of officers and directors and damages, the Court clarified that the existence of the personal injury suffered by the plaintiffs does not disqualify them from filing a derivative suit, instead, it merely gave rise to additional causes of action.[48]

Under Section 2, Rule 3 of the Rules on Civil Procedure, every action must be prosecuted or defended in the name of the real party in interest, unless otherwise authorized by law. In a derivative suit, the stockholder is suing on a cause of action belonging to the corporation. Consequently, the corporation is indispensable to the suit and it must be impleaded, either as a co-plaintiff or defendant.

In the earlier case of Everett v. Asia Banking Corporation,[49] the Court ruled that the failure of the plaintiffs to implead the corporation as a party to the suit was not fatal. This ruling was reiterated in Pascual v. Santos,[50] which was a suit instituted by the minority stockholders for, among others, the appointment of a receiver pendente lite and accounting of the books and accounts of the corporation. Accordingly, the general rule that a suit must be brought directly in the name of the corporation and in its behalf admits of exception, among which is the clear allegation of dissipation of assets being committed by the majority who holds control over the corporation.

In Republic Bank,[51] however, the Court ruled that the corporation should be made a party to the derivative suit to ensure that any judgment that may be had will be binding on the corporation and prevent future re-litigation of the issues. It is immaterial whether the corporation is joined as party-plaintiff or party-defendant,[52] since misjoinder of parties is not a ground for a dismissal of a case. What is important is that the corporation be made a party to the suit. This ruling was reiterated in Asset Privatization Trust v. Court of Appeals[53], where the Court held that the corporation is an indispensable party in a derivative action and joining the latter is a condition sine qua non in such a suit. The Court, moreover, emphasized that direct individual suits brought by the stockholders for their own benefit is proscribed for several reasons. First, it would conflict with the separate personality of the corporation and its stockholders. Second, it may result in the premature distribution of the assets of the corporation to the prejudice of its creditors. Third, it may interfere with the duty of the Board of Directors to institute suits for the protection of the corporation and its stockholders. Fourth, it would result in multiplicity of suits. Lastly, it would result in confusion regarding the amount of damages that may be recovered by the corporation.[54]

More recently in Chua,[55] the Court reiterated this ruling. Chua originated from a criminal case for falsification of documents filed against Chua. The Metropolitan Trial Court judge’s order in excluding private complainant’s private counsel prompted the private complainant to file a petition for certiorari with the Regional Trial Courts. In their petition, the private complainant alleged that she was suing as a stockholder, in behalf of Siena Realty Corporation, since the falsified documents pertain to projects of the corporation. The Court of Appeals held that the action was a derivative suit. The Supreme Court found this CA ruling inaccurate and explained:

Not every suit filed in behalf of the corporation is a derivative suit. For a derivative suit to prosper, it is required that the minority stockholder suing for and on behalf of the corporation must allege in his complaint that he is suing on a derivative cause of action on behalf of the corporation and all other stockholders similarly situated who may wish to join him in the suit. It is a condition sine qua non that the corporation be impleaded as a party because not only is the corporation an indispensable party, but it is also the present rule that it must be served with process. The judgment must be made binding upon the corporation in order that the corporation may get the benefit of the suit and may not bring subsequent suit against the same defendants for the same cause of action. In other words, the corporation must be joined as party because it is its cause of action that is being litigated and because judgment must be a res adjudicata against it.[56](Emphasis supplied)

II. Requisites in maintaining a derivative suit

The Interim Rules formally laid down the basic requirements that must be complied with in the institution of derivative suits. Rule 8, Section 1 of the Interim Rules provides:

Section 1. Derivative action. — A stockholder or member may bring an action in the name of a corporation or association, as the case may be, provided, that:

(1) He was a stockholder or member at the time the acts or transactions subject of the action occurred and the time the action was filed;

(2) He exerted all reasonable efforts, and alleges the same with particularity in the complaint, to exhaust all remedies available under the articles of incorporation, by-laws, laws or rules governing the corporation or partnership to obtain the relief he desires;

(3) No appraisal rights are available for the acts or acts complained of; and

(4) The suits is not a nuisance or harassment suit.

In case of nuisance of harassment suit, the court shall forthwith dismiss the case.

Ownership of Stocks

That the complainant should be a shareholder of the company at the time of the act or transaction complained of in order for him to maintain a derivative suit has been enunciated by the Supreme Court in the case of Pascual v. Orozco, written by Justine Trent. In that case, the Court considered two causes of action. The first cause of action concerns the defendants’ misappropriation of the corporate funds during 1903 to 1907; while the second one involves the defendants’ failure to take action with regard tothe fraudulent misappropriation of corporate funds committed by the defendant’s predecessors from 1899 to 1902. The complainant only became a stockholder on the 13th of November, 1903. The Court, relying mainly on American jurisprudence, ruled that the “a stockholder who was not such at the time of transactions complained of, or whose shares had not devolved upon him since by operation of law, cannot maintain suit of this character unless such transactions continue and are injurious to the stockholder, or affect him especially and specifically in some other way.” The demurrer to the second action was sustained since the complainant was not a stockholder during the time in question in the second cause of action.

The Court in Pascual conceded the ruling in Hawes v. City of Oakland, with respect to the allegation in the bill that the plaintiff was a stockholder of the corporation at the time of the transaction complained of was a “mere rule of pleading”. It took note that the regulations set in Hawes was motivated by the desire to prevent the practice of bringing fraudulent or collusive suits, saying:

It is true that the court in writing the decision in the Hawes case, had in mind the prevalence of the practice of bringing suits in the Federal courts, by collusion between the parties, which should properly be tried in the State court. It is equally true that the court was desirous of preventing a continuance of these fraudulent practices, by establishing a test which should prevent them. The basis of the right to sue in the Federal courts being diversity of citizenship, the usual method employed to enable parties to suits of this kind to invoke the jurisdiction of these courts was to have a few shares of stock transferred to some person who was a citizen of a State other than that of which the proposed defendants were citizens. In a case of this kind the transfer of the stock would be, of necessity, merely nominal, and the plaintiff, under such circumstances, would not be a bona fide stockholder, and would not be entitled to maintain the suit. Of necessity, in cases of this kind, of genuine collusion to create a fictitious diversity of citizenship the nominal transfer of the stock is made at a date subsequent to that of the occurrence of the acts or omissions complained of.

Justice Trent added that “the mere fact that in some cases persons suing as stockholders for the redress of grievances anterior to the transfer of the stock held by the plaintiff are not acting in good faith would not justify or authorize a refusal to take jurisdiction in any case in which the plaintiff’s stock was acquired after the occurrence of the facts supposed to constitute the cause of action, unless the court were of the opinion, as a matter of substantive law, that in no event would a stockholder so situated be entitled to maintain such an action.” He averred that the existence of the fact of stock ownership during the transaction in order to give rise to the cause of action is a substantive rule and not merely a procedural requirement.

The Court went as far as declaring that even a transferee of a stock, who bought it without notice of the transferor’s participation or silent acquiescence in a wrongful act or transaction, cannot maintain a derivative action. The Court reasoned:

If the plaintiff himself had been injured by the acts of defendants’ predecessors that is another matter. He ought to take things as he found them when he voluntarily acquired his ten shares. If he was defrauded in the purchase of these shares he should sue his vendor.

Ownership of shares of stock in the corporation at the time the acts complained of took place was also recognized by the Philippine Supreme Court as an important requisite to successfully bring a derivative action, as was unequivocally stated by the Court in Pascual. But the fact that the stockholder was such at the time of the transaction complained of is not sufficient in itself, should the latter thereafter lose his status as a stockholder of the corporation at the time the suit was filed. In a suit filed by a current stockholder and a previous stockholder for acts done while both were holding shares of the corporation, the Court dismissed the suit as to the previous stockholder, but allowed it as to the other current stockholder. Thus, the personality of one of the suing stockholders as a current stockholder is sufficient to invest her personality to maintain the suit.[57]

A mere trustee of shares of a corporation may vest him with personality to bring the action. Thus, in San Miguel,[58] the Court took cognizance of a suit filed by the PCGG-nominated director of San Miguel.[59]

However, in Bitong vs. Court of Appeals,[60] the Court refused to take cognizance of the derivative action filed by the plaintiff upon showing of evidence tending to prove that she was merely a trustee of another entity, JAKA Investment Corporation. The Court disregarded the fact that she was a holder of shares of the corporation, as evidenced by a stock certificate issued in her name, and the stock transfer books of the corporation. The ruling of the Court implies that the suit should have been instituted by the beneficial owner for the suit to prosper.

The amount of the stockholdings of the stockholder suing on a derivative cause of action, however, is not important, on the ground that the suit is for the benefit of suing stockholder but for the corporation.[61] In San Miguel, the PCGG-nominated Director owning 20 shares of stock of San Miguel Corporation or a mere 0.00001644% owner of the total outstanding stock of the corporation instituted a derivative action impugning the resolution of the Board to assume the loan of its subsidiary. The Court ruled that the fact that the suing stockholder has a miniscule interest over the corporation is immaterial in determining his personality to sue on behalf of the corporation and “the bona fide ownership by a stockholder of stock in his own right suffices to invest him with standing to bring a derivative action for the benefit of the corporation.”

Problems related to this requisite arise in instances where a corporation merge with another corporation and the stockholder loses his stockholdings in the constituent corporation. In Crow vs. Context Industries,[62] the Court disallowed the original stockholder of the absorbed constituent corporation to bring a suit on behalf of the absorbed corporation on the ground that he was no longer a stockholder of the subsidiary corporation at the time of the institution of the suit. Thus, a strict interpretation of the rule on contemporaneous ownership may deprive a stockholder the opportunity to vindicate his right as a shareholder of the absorbed corporation and to challenge the alleged illegal or invalid action.

Another matter associated with this requirement is the status of the plaintiff as stockholder during the pendency of the derivative suit. In most American States, it is required that the suing stockholder remain as such until the matter has been adjudged, otherwise, he will lose his standing to sue. Accordingly, this requirement ensures that a stranger to the transaction complained will not be allowed to prosecute a suit regarding an act which he is not involved in.[63]

In Pascual however, the Court recognized an exception to the rule on ownership, i.e., when the transaction or act complained of is a continuing one as to cause injury to the stockholder “or affect hum especially and specifically in some other way.”[64] This is the so-called “continuing wrong doctrine,” where the stockholder is allowed to bring a derivative suit even if the transaction complained of happened long before he purchased his shares in the corporation, if the wrong is still occurring at the time of his purchase.[65]

Exhaustion of Intra-Corporate Remedies

The requirement of exhaustion of intra-corporate remedies has been long-standing in American jurisdictions. In Hawes v. City of Oakland, the plaintiff was held not to have standing to sue when he failed to show that he exhausted all means to have his grievances redressed within the corporation. The Court described the act necessary as “earnest, not a simulated, effort with the managing body of the corporation to induce remedial action on their part.” If in case this was not done, it was held necessary to show with particularity the reason why it could not be accomplished or why it was unreasonable to do so. Although the rationale of that rule was not explained in Hawes, it was later established by other jurisprudence that the purpose of such requisite is to give the corporation a fair opportunity to act on the demand and to allow the directors a chance to conduct the corporation’s affairs.[66] It also prevents the institution of frivolous or nuisance suits.[67]

In Development Bank of the Philippines v. Judge Amir Pundogar,[68] the Court clarified that before a stockholder may bring a suit, he must first exhaust the available remedies within the corporation, specifically, todemand the Board to sue the erring officers and/or third persons whose acts caused injury to the corporation. However, the demand may be dispensed with if it would be futile, as in DBP where the very constitution of the Board is in question or where the Board is under the complete control of the defendants.[69] This is the so-called futility exception and is:

[a] very limited exception, to be applied only when the allegations or evidence clearly demonstrate, in a very particular manner, either that (1) a demand, or a delay in awaiting a response to a demand, would cause irreparable harm to the corporation, or (2) a majority of the directors are so personally and directly conflicted or committed to the decision in dispute that they cannot reasonably be expected to respond to a demand in good faith and within the ambit of the business judgment rule.[70]

Thus, the reasons for not complying with this particular requirement should be indubitable. The fact that the corporation is a family corporation is not as sufficient justification to do away with this requirement.[71]

It must be remembered that derivative suits were recognized by courts on considerations of equity. It would therefore, be error for the court to give credence to a repudiation made by the Board of Directors of a derivative suit filed by minority stockholders on the simple expedient of invoking the general rule that the power of the corporation to sue is lodged with its Board of Directors. The Board of Directors cannot be reasonably expected to institute a suit which would prejudice them[72] and “if a majority of shareholders is allowed to repudiate the derivative suit of the minority stockholders, no such action would ever prosper.”[73] It would also “defeat the very nature and function of a derivative suit and render the right to institute the action illusory.”[74]

What is important therefore is the existence of a bona fide effort on the part of the stockholder to make a demand on the Board of Directors to undertake the necessary actions to remedy the act complained of. But the Board may not, after such demand, move to dismiss a derivative action filed by minority stockholders on the simple pretext of invoking its power to conduct the business of the corporation.

Absence of Appraisal Right

In 2009, almost eight (8) years after the promulgation of the Interim Rules, the Court had the occasion to delve on the requirement of absence of appraisal right in the case of Cua, Jr. vs. Tan.[75] Appraisal right refers to the right of a stockholder who dissented and voted against a proposed corporate change to get out of the corporation by demanding the payment of the fair value of his shares. The Corporation Code provides that a stockholder may exercise its appraisal right: 1) in case of amendment to the articles of incorporation which has the effect of changing or restricting the rights of any stockholder or class of shares, or of authorizing preferences in any respect superior to those of outstanding shares of any class, or of extending or shortening the term of corporate existence;[76] 2) in case of sale, lease, exchange, transfer, mortgage, pledge or other disposition of all or substantially all of the corporate property and assets as provided in this Code; and 3) in case of merger or consolidation.[77] This right is also granted in case of disagreement with a corporate resolution to invest in another corporation or business or for any purpose other than the primary purpose of the corporation.[78]

In Cua, Jr., the controversy involved a clash between the minority stockholders and the controlling stockholders of Philippine Racing Club, Inc. (PRCI), a publicly listed company. The majority stockholders of PRCI are composed of a Malaysian company and the Cua family (Santiago Cua, Sr. and his three sons).[79] They also comprise majority of the board of directors.[80] PRCI was about to swap its huge race track at Makati with a zonal value of P3,817,242,000.00 (alleged to have a fair value of 12 billion pesos) for JTH Davies Holdings, Inc. stocks worth 397,908,894.50 only.[81] When the minority stockholders discovered this plan, they requested to be furnished with the documents pertaining to the transactions. Aside from this, they also publicly denounced the swap, alleging that they were “left in the dark” when the controlling group refused to furnish them the documents they requested and that the swap involves the most important asset of PRCI.[82]

The swap transaction was set to be submitted for stockholders’ approval on their annual stockholders’ meeting in 2007. However, days before the scheduled stockholders’ meeting, two minority stockholders (Ocampo-Tan, et al.) and one director filed a derivative suit against PRCI directors. The complaint was based on the following causes of action:

(1) the approval by the majority directors of PRCI of the Board Resolutions dated 26 September 2006[83] and 11 May 2007[84] — with undue haste and deliberate speed, despite the absence of any disclosure and information — was not only anomalous and fraudulent, but also extremely prejudicial and inimical to interest of PRCI, committed in violation of their fiduciary duty as directors of the said corporation;

(2) respondent Solomon, as PRCI President, with the acquiescence of the majority directors of PRCI, maliciously refused and resisted the request of respondents Miguel, et al., for complete and adequate information relative to the disputed Board Resolutions, brazenly and unlawfully violating the rights of the minority stockholders to information and to inspect corporate books and records; and

(3) without being officially and formally nominated, the majority directors of PRCI illegally and unlawfully constituted themselves as members of the Board of Directors and/or Executive Officers of JTH, rendering all the actions they have taken as such null and void ab initio.[85]

The trial court granted a permanent injunction and restrained the discussion of the asset-for-shares swap on the scheduled stockholders’ meeting until the case is resolved. The stockholders’ meeting did not push thru because of lack of quorum. The directors filed a Petition for Certiorari with the Court of Appeals but it was dismissed for lack of merit, mootness, and prematurity. Failing to obtain a favorable order from the Court of Appeals, the directors raised their appeal to the Supreme Court. The Supreme Court issued a restraining order to enjoin the enforcement of the trial court’s writ of permanent injunction. While the appeal was pending before the Supreme Court, the plan for the controversial asset-for-shares exchange was submitted to the stockholders for approval. In a meeting attended by stockholders representing 86.52% of the outstanding capital of the corporation, stockholders representing 75.23 % of the outstanding capital stock approved the transaction.[86]

Meanwhile, the Supreme Court resolved the issue in favour of the directors and dismissed the derivative suits, including another derivative suit filed by another set of minority stockholders during the pendency of the appeal. The decision, penned by Justice Chico-Nazario, was based on, among others, the availability of appraisal rights for the corporate act complained of. Accordingly, the sale of all or substantially all of the assets of the corporation accords to the dissenting stockholder an appraisal right, which he may exercise within the period prescribed under the Corporation Code.

The Court ruled that the availability of appraisal right is crucial in determining whether the derivative suit is a nuisance suit:

The import of establishing the availability or unavailability of appraisal rights to the minority stockholder is further highlighted by the fact that it is one of the factors in determining whether or not a complaint involving an intra-corporate controversy is a nuisance and harassment suit… The availability or unavailability of appraisal rights should be objectively based on the subject matter of the complaint, i.e., the specific act or acts performed by the board of directors, without regard to the subjective conclusion of the minority stockholder instituting the derivative suit that such act constituted mismanagement, misrepresentation, fraud, or bad faith.

The raison d’etre for the grant of appraisal rights to minority stockholders has been explained thus:

[Appraisal right] means that a stockholder who dissented and voted against the proposed corporate action, may choose to get out of the corporation by demanding payment of the fair market value of his shares. When a person invests in the stocks of a corporation, he subjects his investment to all the risks of the business and cannot just pull out such investment should the business not come out as he expected. He will have to wait until the corporation is finally dissolved before he can get back his investment, and even then, only if sufficient assets are left after paying all corporate creditors. His only way out before dissolution is to sell his shares should he find a willing buyer. If there is no buyer, then he has no recourse but to stay with the corporation. However, in certain specified instances, the Code grants the stockholder the right to get out of the corporation even before its dissolution because there has been a major change in his contract of investment with which he does not agree and which the law presumes he did not foresee when he bought his shares. Since the will of two-thirds of the stocks will have to prevail over his objections, the law considers it only fair to allow him to get back his investment and withdraw from the corporation.[87] (Emphasis supplied)

Moreover, the Court also explained that the allegations of misrepresentation and fraud do not excuse the plaintiff from the requirement that the appraisal right must not be available for the acts complained of. Accordingly, the allegations of fraud and misrepresentation does not render the right of appraisal unavailable, otherwise appraisal rights would be unavailable to every act subject of a derivative suit since every derivative suit is necessarily grounded on an alleged violation by the board of directors of its fiduciary duties, committed by mismanagement, misrepresentation, or fraud.

Not a Nuisance or Harassment Suit

While the courts recognize the necessity of derivative suits, it is “not favoured in the law”[88] since it clashes with the business judgments of the individuals tasked to manage the affairs of the corporation. Thus, there is a necessity to institute sufficient safeguards to ensure that suits of this nature are not used as a tool to suppress legitimate management decisions. Thus, jurisprudence has established that a derivative suit must not be a nuisance suit, otherwise called as harassment or strike suit.

Thus, the courts have established that not all suits brought by minority stockholders are derivative actions. In derivative suits, it is important to allege that the plaintiff is suing on a derivative cause of action, otherwise, the court may not acquire jurisdiction over the complaint. Therefore, an appeal on the civil aspect of a criminal case instituted by the minority stockholders against the officers of the corporation may not be properly be recognized as a derivative action.[89]

In the Philippines, the Supreme Court has established several measures before a suit can be considered as a bona fide suit and not merely a nuisance suit. However, the Court has yet to delve into this matter into great lengths.

Section 1(b), Rule 1 of the Interim Rules provides:

(b) Prohibition against nuisance and harassment suits. – Nuisance and harassment suits are prohibited. In determining whether a suit is a nuisance or harassment suit, the court shall consider, among others, the following:

(1) The extent of the shareholding or interest of the initiating stockholder or member;

(2) Subject matter of the suit;

(3) Legal and factual basis of the complaint;

(4) Availability of appraisal rights for the act or acts complained of; and

(5) Prejudice or damage to the corporation, partnership, or association in relation to the relief sought.

In case of nuisance or harassment suits, the court may, motu proprio or upon motion, forthwith dismiss the case.

The first requirement seeks to prevent a situation where a dissenting stockholder with miniscule interest over the corporation can possibly subvert the legitimate management decisions of the corporation. In the United States, the extent of the interest of a suing stockholder is considered when the law requires security for expenses in favour of the corporate officers.[90]

The subject matter of the suit is important to verify whether the suit is an individual, representative or a derivative action, while the factual and legal bases of the complaint seek to determine whether the allegations in the complaint are sufficient to establish a cause of action. The injury to the corporation is crucial in determining whether the suit is a derivative one for a cause of action of the corporation, and not for a cause personal to the stockholder. Lastly, the availability of appraisal right on the part of the suing stockholder seeks to prevent litigation and gives the dissenting stockholder instead, the opportunity to withdraw from the corporation.

Thus, not all suits brought by the stockholder may be taken cognizance of as a derivative action. In Union Glass and Container Corporation v. SEC,[91] the Court ruled that the buyer of a lot owned by the corporation cannot be made as a party in a derivative suit filed by the minority stockholder against the majority stockholder. Since Union Glass was not involved with the corporate controversy between the contending stockholders, the tribunal cannot have jurisdiction over it. Consequently, Union Glass should be dropped as defendant in the derivative action.

This suit in equity could not be used to circumvent the rules on forum shopping, as was illustrated in the case of First Philippine International Bank v. Court of Appeals.[92] In this case, the majority stockholders of the First Philippine International Bank filed a “derivative suit” with a prayer to declare any sale of the property owned by the Bank as unenforceable. Impleaded as defendants in this case were the Bank conservator and the purported buyers of the properties owned by the Bank. This case was filed during the pendency of a suit to enforce the alleged perfected contract of sale between Bank and the buyers of the lot (impleaded as co-defendant in the “derivative suit”). Due to the pendency of this case, the defendants in the derivative suit prayed for the dismissal of the case on the ground of litis pendentia and violation on the rule against forum shopping. In a turn-about, the majority stockholders averred that the suit is not a derivative suit since it was filed at the instance of the majority stockholders, who are also the members of the Board. It is the Bank itself that instituted the suit. The Court, in disposing of this argument, opined:

[T]he corporate veil cannot be used to shield an otherwise blatant violation of the prohibition against forum-shopping. Shareholders, whether suing as the majority in direct actions or as the minority in a derivative suit, cannot be allowed to trifle with court processes, particularly where, as in this case, the corporation itself has not been remiss in vigorously prosecuting or defending corporate causes and in using and applying remedies available to it. To rule otherwise would be to encourage corporate litigants to use their shareholders as fronts to circumvent the stringent rules against forum shopping.[93] (Emphasis supplied)

Upholding Equity

A stockholders’ derivative action is one that is grounded on equity. As can be seen in the discussion of the history of derivative suits, the courts of equity allowed derivative suits in order to give stockholders remedy from corporate insiders’ abuse, malfeasance or misfeasance. The development of the concept of derivative suits shows that the courts of equity wanted to give protection to the stockholders while preserving the fundamental doctrine that the power and control of the corporation rests with the directors. The general rule is that when a corporation sustains an injury, a suit must be brought by its directors in the corporation’s name. Exception to this rule was created based on equity in order to accommodate a situation where the directors are guilty of abuse and/or they refuse to institute a suit to the detriment of the corporation and its shareholders. The derivative suit became an instrument to make corporate directors accountable for fraud or any other form of abuse. In Cohen v. Beneficial Industrial Loan Corporation, it was explained:

Equity came to the relief of the stockholder, who had not standing to bring civil action at law against faithless directors and managers. Equity, however, allowed him to step into the corporation’s shoes and to seek in its right the restitution he could not demand in his own. It required him first to demand that the corporation vindicate its own rights but when, as was usual, those who perpetrated the wrongs also were able to obstruct any remedy, equity would hear and adjudge the corporation’s cause through its stockholder with the corporation as defendant, albeit a rather nominal one. This remedy born of stockholder helplessness was long the chief regulator of corporate management and has afforded no small incentive to avoid at least grosser forms of betrayal of stockholders’ interest. It is argued, and not without reason, that without it there would be little practical check on such abuses.[94]

However, as the stockholders’ right to sue in behalf of the corporation became fundamentally recognized, the problem of nuisance or strike suits arose. The Court in Cohen went on to describe the problem of strike suits,

Unfortunately, the remedy itself provided opportunity for abuse which was not neglected. Suits sometimes were brought not to redress real wrongs, but to realize upon their nuisance value. They were bought off by secret settlements in which any wrongs to the general body of share owners were compounded by the suing stockholder, who was mollified by payments from corporate assets. These litigations were aptly characterized in professional slang as ‘strike suits.’ And it was said that these suits were more commonly brought by small and irresponsible than by large stockholders, because the former put less to risk and a small interest was more often within the capacity and readiness of management to compromise than a large one.[95]

In Hawes, we see that the court noted the growth in corporate litigations, and so they imposed procedural hurdles in the institution of derivative suits. When problems of strike suit persisted, several states in the US enacted the security-for-expenses statutes in order to discourage frivolous suits.[96] Some commentators opined that the adoption of these statutes meant the death of derivative suits but the shareholder-plaintiffs managed to employ tactics to evade the applicability of these statutes to their actions, and so the popularity of derivative suits was eventually revived.[97]

As early as 1911, the Philippine Supreme Court was already wary against harassment suits. In Pascual, it stated that “where stock is required for the purpose of bringing suit it has been held that the complaint is a mere interloper and entitled to no consideration.”[98] More than 30 years later, the Supreme Court expressly prohibited nuisance or harassment suits in the Interim Rules. In doing so, they came up with a list of factors that can determine whether the suit is merely nuisance or is indeed meritorious. They also expressly required that derivative suits should not be a nuisance suit for it to prosper.

Procedural limitations were created in order to discourage, or eliminate, the practice of filing nuisance actions. However, procedural rules can also curtail meritorious claims just as much as it can prevent non-meritorious ones. In the regulation of derivative actions therefore, the legislators and the courts are faced with the problem of preventing nuisance or strike suits while keeping in mind the original purpose of a derivative suit, which is to protect the corporation and stockholders from directors’ abuses.

A derivative suit is termed as such because a stockholder derives his cause of action from the corporation. Therefore, the corporation remains the real party in interest and any benefit that may be awarded in the suit shall devolve to the corporation. The stockholder thus remains a mere nominal party.

But it is inevitable that in suing on the cause of action of the corporation, the stockholder is also suing upon his own cause of action and is thus also a real party in interest. By suing on a derivative action, he takes on a dual role – as a representative of the corporation and as an individual stockholder, who stands to be benefitted or injured by the resolution of the controversy.[99] Derivative suits also serve as an instrument to expose management fraud and to demand accountability from the directors. It can function as a check on the vast discretion that the directors have. By looking at a derivative action this way, the role of the stockholder is magnified and his interest becomes paramount, and not merely that of the corporation. Imposing stringent procedural rules in instituting derivative action may thus greatly curtail the ability of the stockholders to protect themselves and ultimately, the corporation.

In Yu v. Yukayguan,[100] the Court had the occasion to point out the effectivity of the new rules on filing derivative actions as provided under Rule 8 of the Interim Rules. No explanation however, was furnished by the Court in the inclusion of the other two requirements under the Interim Rules.

Almost six months after, the Court had another occasion to explain the rationale behind the expansion of the procedural rules on derivative actions in Cua, Jr. Similar to Yu however, the Court failed to explain the rationale behind the enactment of the requirements under Rule 8 of the Interim Rules. Instead of resolving the issue head on, the Court used the requirement on the badges of nuisance suit under Rule 1 of the Interim Rules to justify the requirement regarding the absence of appraisal right.[101]

In a seemingly smart move to skirt the issue, the Court took cover under the auspices of the requirement on nuisance suits under Section 1(b), Rule 1 of the Interim Rules. The Court then conveniently shifted the discussion on the importance of appraisal right, seemingly forgetting that the issue before them involved the importance of the appraisal right in relation to the institution of derivative suits. The most that could be gathered from the Court’s discussion is that the change in the conditions in filing a derivative suit is to prevent a nuisance or harassment suit.

The requirement that a shareholder must not have appraisal rights on the matter is a dangerous procedural limitation as it can defeat the purpose of a derivative suit. In the Interim Rules, having appraisal right is a factor in determining whether a suit is a mere nuisance suit. The extent of ownership of the initiating shareholder is also considered a factor in considering whether the suit is merely for harassment. Although ownership of a small number of shares can be taken into account in identifying a strike suit, it does not necessarily mean that a stockholder’s suit is merely for harassing the majority stockholders and the directors. In fact, jurisprudence is replete with the rule that ownership of just one shares of stock is not a hindrance in filing a derivative action. Just the same, there is no direct correlation between having appraisal rights and filing frivolous claims. The cause of action in a derivative suit belongs to the corporation and the shareholder is merely representing it. How can then an appraisal right belonging to the shareholder affect the merits of the corporation’s cause of action? The fact that the stockholder has an appraisal right does not affect the fact that an injury was done to the corporation.

To illustrate the danger of the additional requirement of absence of appraisal rights, if we assume that the directors-defendants in the case of Cua, Jr. was indeed guilty of fraud and motivated by bad faith in orchestrating the asset-for-shares swap, the minority shareholders would have no chance to demand accountability and restitution in behalf of the corporation before the court since the matter involves a transaction wherein appraisal right is available. The minority stockholders then would have no choice but to let go of their shares if they dissent with the directors’ plan even if they knew it to be fraudulent and injurious to the corporation.

A cunning majority can easily subvert and trample the rights of the minority. It could easily create layer upon layer of transactions affording appraisal rights to cloak its wrongdoing with impunity, because a merger affords a dissenting stockholder an appraisal right. It renders nugatory the policy of protecting minority stockholders as implied in the Corporation Code. Should the requirements under the Interim Rules apply strictly, especially the requirement on the absence of appraisal right. This requisite is suspect since it does not uphold equity, the fundamental basis of derivative action.

Conclusion

The Constitution provides that the Supreme Court shall have the power to promulgate rules of procedure, provided that they do not diminish, impair substantive rights.[102] Procedural rules then, are meant to breathe life into the rights granted to the people and give them the means to enforce them.

The complexities of modern commercial transactions gave rise to multifarious issues that plague corporate management. Inevitably, in the process of conducting its business, stockholders disagree on the manner by which the enterprise is being managed. To remedy the controversies which arise between and among shareholders and the management, jurisprudence has recognized the concept of derivative suits based on equity considerations. It is doubtful however, whether the Supreme Court was faithful in upholding its mandate in establishing the rules on derivative actions under Rule 8 of the Interim Rules with due regard to its origins in equity.

What is needed therefore is a re-evaluation of the rules on derivative suits as provided under Rule 8 of the Interim Rules. When measured against the immense powers of the majority, derivative actions become the sword that minority wields for their protection, and ultimately and more importantly, that of the corporation’s. It is in light of this context that the importance of derivative actions cannot be over-emphasized.[103]

[29]Id. at 461. In this case, the Court noted that a mere filing of a request, without more, to the President and Directors of the corporation is not enough to prove that the suing stockholder has exhausted all the remedies available before him.

[30]Id. The Court took note that there was no clear allegation of any wrong-doing being committed by the Directors of the Corporation in this case. Moreover, the plaintiff failed to allege with particularity the steps he has taken to protect his rights.

[31]Id. The Court made no substantive discussion on this point however, ruled that the other grounds alleged by the defendant justify a demurrer to the complaint.

[32]Id. This requirement is paramount in instituting actions before Federal Courts, since the jurisdiction of the latter may only be had upon a determination that the parties in the suit are of diverse citizenship. Thus, some scrupulous shareholders transfer their shares to another person who resides outside of the State of the defendant to make it appear that the suit involves a controversy between parties of diverse citizenship. This requirement also ensures that the suing plaintiff was a stockholder of the corporation at the time the transactions complained of took place, and prevents a situation where shares of stock of a corporation is transferred to another person for the sole purpose of instituting action to have a higher pecuniary benefit. This also forestalls nuisance suits. See discussion in Pascual v. Orozco, G.R. No. 5174, 19 Phil. 82, 95-96, Mar. 17, 1911.

[33] The rules laid down in this case were eventually incorporated in the 94th Equity Rule adopted on Jan. 23, 1883 as cited in Pascual. See also Federal Rules of Civil Procedure, Rule 23.1 (which adopted, with some minor modifications, these same rules).

[52] According to the Court, the English practice is to join the corporation as party defendant, while the American practice is to make it a party plaintiff. The Court took note however, joining the corporation as party defendant would bring it into the awkward position of resisting an action instituted for its benefit. Should it be made a party plaintiff however, the absence of a Board Resolution authorizing the suit may be invoked. See Lichauco v. Court of Appeals, G.R. No. 23842, Mar. 13, 1975 (where the corporation was impleaded as party defendant since no consent can be had regarding the institution of the suit).

[59] In allowing the suit filed by the PCGG-nominated director, the Court relied on Baseco v. PCGG recognizing the right of the PCGG to vote sequestered shares pending the outcome of the proceedings to determine their ownership.

[61] Republic Bank v. Cuaderno, G.R. No. 22399, 19 SCRA 671, Mar. 30, 1967. Most American states also follow the same rule, except in cases where the law requires security for expenses, in which case the suing stockholders are required to post a bond for the payment of litigation expenses. See Seth Aronson et al., Shareholder Derivative Actions: From Cradle to Grave, in Corporate Law and Practice Course Handbook Series 273 (2007).

[67] Brandi, supra note 40, at 374. (However, Brandi posits that the stringency of the demand requirement also serves as deterrence to both meritorious and frivolous derivative actions “since the conditions for judicial review of the board or litigation committee’s decision to reject the shareholder demand are not related to the merits of the underlying case”).

[79] Neal Cruz, RP Stockholders may be cheated in P12-B deal, Inquirer.net, August 8, 2007, available at http://newsinfo.inquirer.net/inquirerheadlines/regions/view/20070808-81223/RP_stockholders_may_be_cheated_in_P12-B_deal

[96] Emmanuel Tipon, Shareholders’ Derivative Suits in the Philippines, 43 Phil. L. J. 486, 501-03 (1968). (Tipon stated that one of the conditions in maintaining a derivative suit is that the complainant must give security for expenses in certain cases (injunction and receivership). In his conclusion however, he said that adoption of security for expenses statutes is not necessary in the Philippines.).

[98] Tipon, supra note 96, at 529-30. (Tipon opined that although collusive and strike suits are not unlikely, there was no sufficient basis to believe that it will come up in the Philippines in the foreseeable future).

[103] There are however, conflicting opinions on this matter. While others seek to expand the concept of derivative actions and espoused the recognition of double derivative actions, others have predicted their eventual demise and rely instead on market forces to address the matter. See Locascio, supra note 62.

CAUGHT IN A WEB[B] OF DNA DISARRAY AN EXAMINATION OF THE REMEDY OF POST-CONVICTION DNA ANALYSIS AND A CASE NOTE ON PEOPLE V. WEBB*

“Oh, you do not know what is seventeen months in prison! – seventeen ages rather, especially to a man who, like me, had arrived at the summit of his ambition – to a man, who, like me, was on the point of marrying a woman he adored, who saw an honorable career opened before him, and who loses all in an instant – who sees his prospects destroyed, and is ignorant of the fate of his affianced wife, and whether his aged father be still living! Seventeen months captivity to a sailor accustomed to the boundless ocean, is a worse punishment than human crime ever merited. Have pity on me, then, and ask for me, not intelligence, but a trial; not pardon, but a verdict – a trial, sir, I ask only for a trial; that, surely, cannot be denied to one who is accused!”

— Alexandre Dumas,

The Count of Monte Cristo

People v. Webb,[1] known infamously as the Vizconde Massacre case, is arguably the most notorious case of rape with homicide in the Philippines. It involves the brutal rape and slay of a nineteen year-old woman and the stabbing to death of her mother and seven-year old sister in their home. The crime was allegedly perpetrated by her supposed jealous boyfriend, the son of a Senator, in conspiracy with seven of his friends. It was also alleged that the conspirators were all high on cocaine that night the crime was committed.

Almost two decades after the incident, and eleven years after their conviction, all of the accused were acquitted by the Supreme Court, which found serious doubts on the credibility of the lone eyewitness who was “a police asset who proposed to her handlers [to] take the role of the witness to the Vizconde massacre.”[2]

While the decision and the separate opinions of the Justices in the case center on the convoluted appreciation of testimonial evidence vis-à-vis alibi, Webb captures doctrinal interest in procedural law particularly as to the value of post-conviction DNA analysis as a remedy for the defense, granting “liberty interest in proving innocence”[3] of the convicted.

This paper examines the Webb decision in light of the Rules on DNA Evidence issued by the Supreme Court. It also aims to capture the policy and doctrine set by the Court regarding post-conviction tests vis-à-vis the issue of DNA evidence preservation throughout the lifetime of a criminal case.

It is divided into three main parts. Part I makes an analysis of the Webb decision, its main and separate opinions, under the lens of DNA post-conviction testing. Part II highlights the important provisions of the 2007 Rules on DNA Evidence and on how these provisions were applied in Webb. Lastly, Part III gives policy recommendations on how the use of DNA as evidence in post-conviction tests can be more effectively used in tilting the balance towards the ends of justice.

I.

A. Silencing the Silent Witness

The facts leading to the case and the majority opinion’s discussion of the DNA issue

In Webb, semen was found in the rape victim’s genital area. The principal accused whom the star witness purportedly identified as the perpetrator of the rape sought the DNA analysis of the semen specimen. This request was denied by the trial court for three reasons: (1) that the presence or absence of sperm is not a “primordial consideration” in rape cases, (2) that DNA testing has “not yet been accorded official recognition” by the courts, as it was “believed” that there was no expert in the Philippines regarding this “relatively new science,” and (3) there is no assurance that, six years into the case at the time of the order, the samples have not been contaminated or tampered with.[4] Such denial was merely raised as an error in the appellate court, and upon affirming the guilty verdict in 2005, it was only when the case was brought to the Supreme Court that a request for DNA analysis be conducted, and although granted by the Court in 2010, the semen samples were nowhere to be found.

Upon the failure to produce the samples, the principal accused filed an urgent motion to acquit because the failure of the State to preserve and produce such vital evidence denied him his right to due process, relying on the case of Brady v. Maryland[5]that “[t]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”[6]

The main opinion in Webb curtly held that an acquittal on such ground was not warranted pointing out the “late stage” of the case and these two grounds:

First, the Court adopted the holding in the 1988 U.S. case, Arizona v. Youngblood,[7] which overturned Brady, that due process does not require the State to preserve semen specimen though may be useful to the accused, unless there is “bad faith” on the part of the State; and

Second, that when accused sought the testing, there was no precedent on the admissibility of DNA analysis in the country, “[c]onsequently, the idea of keeping the specimen secure . . . did not come up,” noting that the accused’s “lack of interest” to have the test done, even after the Court promulgated the rules on DNA analysis. In the words of the Court:

[W]hen [the principal accused] raised the DNA issue, the rule governing DNA evidence did not yet exist, the country did not yet have the technology for conducting the test, and no Philippine precedent had as yet recognized its admissibility as evidence. Consequently, the idea of keeping the specimen secure even after the trial court rejected the motion for DNA testing did not come up.

. . . .

. . . [T]he State cannot be deemed put on reasonable notice that it would be required to produce the semen specimen at some future time.

B. Youngblood is for the old bloods

The rationale of the main opinion appears not only to be abrupt but also rather precarious for having made a perfunctory reliance in the holding in Youngblood without looking at the context of the case, promulgated 21 years before this decision in Webb. At the outset, it must be observed that the Youngblood was not adopted by a unanimous Court: out of the nine justices, only five concurred in the ponencia of Justice Rehnquist – a clearly divided Court.[8]

What is agonizing about the decision is that in reality, Youngblood was imprisoned for his ten and a half year-sentence, was called a sex offender of children (having been charged with sexual assault, kidnapping, and child molestation) from his conviction back in 1985, and was only exonerated 15 years after – due primarily because of eyewitness misidentification.[9]

1. Requirement of Bad Faith

A rather stark difference in the two cases is clearly apparent: in Youngblood, the semen sample was not lost, but was only not properly preserved such that it was degraded and rendered unfit for DNA analysis according to the technology available at the time. Science saves the day when in 2000, this “injustice”[10] was dealt with and the degraded evidence was tested using more advanced DNA technology yielding negative results against Larry Youngblood, who was released from charges. A year later, the DNA profile discovered from the test was matched to a certain Walter Cruise, who was thereafter convicted of the crime.[11]

Assuming that the bad faith standard was adopted and contextualizing Webb in the circumstances of Youngblood, the question is: how could there not be bad faith when the semen sample was absolutely nowhere to be found?

However, much is also to be said about the requirement to prove bad faith as a grueling and vague requisite. Justice Blackmun in his dissent objected to the bad faith standard, reasoning that because of “the inherent difficulty . . . in obtaining evidence to show a lack of good faith [and] the line between ‘good faith’ and ‘bad faith’ is anything but bright . . . the majority’s formulation may well create more questions than it answers,”[12] especially because it is the accused who has the burden of proving so.

The main opinion in Webb states that the State could not have been apprised of any need “to produce the semen specimen at some future time.”[13] However, the main case was still broughtto the Supreme Court, and evidentiary issues can still be tackled by the High Court, as it has done many times in the past.[14]

Furthermore, one of the main reasons of the trial court for denying the motion was the lack of recognition of the “new science” by the Courts, or the then lack of “experts” in the country – an issue of technology that would be dealt with in the future.

The Court also points to the seeming “lack of interest” of the defense in using the semen sample and testing it for DNA because (a) it did not bring the DNA issue on appeal, and (b) the Rules on DNA testing were meanwhile promulgated. This reasoning is alarming because:

First, there seems to be an implication that the defense slept on their rights, hence, estopped from availing of the remedy. Taking the reasoning a step further, the argument would insinuate that if the evidence existed, there would be an implicit prescriptive period when the defendant ought to avail of such remedy.

The fear of the trial court that there is a lack of assurance that the samples have not been contaminated or tampered with, considering it was already six years into the case at the time the DNA test was ordered, were “based on mere conjectures that ran against the presumption of regularity in the performance of official duty.”[15]

Second, the facts of the Webb case show that the defense was of the belief that the samples were in the possession of the police. The following timeline is useful to determine the chain of custody of the semen sample:

1991: According to the testimony of Dr. Prospero Cabayanan, the National Bureau of Investigation Medico-Legal Chief, 1991 was the year that he first examined the semen samples.[16]

1995: Dr. Cabayanan also testified that he last saw the semen samples when it was photographed in 1995.[17]

January 31, 1996: Chief State Prosecutor Jovencito Zuno marked in evidence the photographs of the three slides containing the semen specimen (not the semen specimen themselves).[18]

January 31 to February 7, 1996: Testimony of Dr. Cabanayan in the trial court, also stating that as far as he knows between 1991 to 1995, the slides were kept in the NBI Pathology Laboratory.[19] In his testimony on February 6, 1996, when Dr. Cabanayan was asked to produce the slides during the previous hearing, which he promised to bring, he admitted that he “forgot all about it.”[20]

April 23, 1997: NBI confirmed in a letter that the semen specimen was in its custody.[21]

April 27, 2010: NBI in its Compliance and Manifestation stated that the semen specimens were submitted as evidence to the trial court. However, it is to be noted that in the same Compliance, NBI merely attached the Laboratory Report (stating positive result for the presence of human spermatozoa), the Autopsy Report (stating “Smear for presence of spermatozoa”), the Sworn Statement of Dr. Cabanayan with Certified True Copy of the envelope with a notation that all photographshave been submitted as evidence during the hearing dates.[22]

May 21, 2010: Trial Court stated that there is no showing of actual receipt of the semen specimens.[23]

Third, it is important to determine who is the rightful custodian of the evidence among the following agents of the State: the NBI, the Prosecution, or the Courts. At the time, given that there were still no rules on DNA analysis, the most imperative point is that the State, regardless of its representation by whom among the aforementioned agents, had the duty to preserve the evidence.

2. Exculpatory valueof DNA Evidence

Another point of the main opinion was the relevance of the semen sample to the case:

It is true that [the eyewitness] identified [the principal accused] in her testimony as [the victim’s] rapist and killer but serious questions had been raised about her credibility. At the very least, there exists a possibility that [the eyewitness] had lied. On the other hand, the semen specimen taken from [the victim] cannot possibly lie. . . . If, on examination, the DNA of the subject specimen does not belong to [the principal accused], then he did not rape [the victim]. It is that simple. Thus, the Court would have been able to determine that [the eyewitness] committed perjury in saying that he did.[24]

The sole paragraph devoted to the discussion appears to be an oversimplification of the relevance of the DNA sample in relation to supposed positive identification of the witness by reducing it to merely that of an issue of the credibility of the witness. After this, the Court simply stated: “Still, [the principal accused] is not entitled to an acquittal for the failure of the State to produce the semen specimen at this late stage.”

The dissent of Justice Villarama[25] provided for the rationale for such the holding of the main opinion in rejecting Brady and adopting Youngblood.To his mind, the source of the semen is “immaterial in determining the guilt” of the accused[26]:

From the totality of the evidence presented . . . [the principal accused] was positively identified as [the victim’s] rapist.

. . . [T]he positive identification of [the principal accused] as the rapist satisfied the test of moral certainty, and the prosecution had equally established beyond reasonable doubt the fact of rape and the unlawful killing of [the three victims].[27]

Justice Villarama’s opinion saw the subject semen sample as evidence which would not exculpate the principal accused if found negative, but merely corroborative, if found positive – because he was positively identified by the eyewitness:

Even assuming that the DNA analysis of the semen specimen taken from [the victim’s] body hours after her death excludes [the principal accused] as the source thereof, it will not exonerate him from the crime charged. [The eyewitness] did not testify that [the principal accused] had ejaculated or used a condom . . . . She testified that she saw [him] rape [the victim] and it was only him she had witnessed to have committed rape inside the Vizconde residence [on the date of the incident]. . . . On the other hand, a positive result . . . would merely serve as corroborative evidence.[28]

While true that the presence or absence of the DNA in a crime of rape by itself would not exonerate an accused, as in this case, the discussion seemed to have lost sight of the issue on what duty is imposed upon the State to preserve evidence:

[T]he accused’s right to access to evidence necessitates in the correlative duty of the prosecution to produce and permit the inspection of the evidence, and not to suppress or alter it. When the prosecution is called upon not to suppress or alter evidence in its possession that may benefit the accused, it is also necessarily obliged to preserve the said evidence. To hold otherwise would be to render illusory the existence of such right.[29]

The Constitution provides that:

In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf.[30]

Thus, the Rules of Criminal Procedure reiterates these provisions providing for the right of the accused in all criminal prosecutions to be presumed innocent until proven otherwise beyond reasonable doubt[31] and the right to “compulsory process issued to secure the attendance of witnesses and production of other evidence in his behalf.”[32] It specifically requires:

Production or inspection of material evidence in possession of prosecution. – Upon motion of the accused showing good cause and with notice to the parties, the court, in order to prevent surprise, suppression, or alteration, may order the prosecution to produce and permit the inspection and copying or photographing of any written statement given by the complainant and other witnesses in any investigation of the offense conducted by the prosecution or other investigating officers, as well as any designated documents, papers, books, accounts, letters, photographs, objects, or tangible things not otherwise privileged, which constitute or contain evidence material to any matter involved in the case and which are in possession or under the control of the prosecution, police, or other law investigating agencies.[33]

Whatever duty the Constitution imposes on the States to preserve evidence, that duty must be limited to evidence that might be expected to play a significant role in the suspect’s defense.

To meet this standard of constitutional materiality . . . evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.[35]

The Rules of Court provides that “[e]vidence must have such a relation to the fact in issue as to induce belief in its existence or non-existence,”[36] hence, “determinable by the rules of logic and human experience.”[37]

The test of relevancy is the logical relation of the evidentiary fact to the fact in issue, i.e., whether the former tends to establish the probability or improbability of the latter. Whereas, materiality of evidence is determined by whether the fact it intends to prove is in issue or not.[38]

Evidence is relevant if “there is reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.”[39]

The holding of the Court and based on the Justice Villarama’s dissent, therefore, is that the semen sample is irrelevant.[40] Thus, applying the analysis, there could not be any violation of the right to due process of the accused because of the loss of the subject evidence: “[The principal accused] must be able to demonstrate a reasonable probability that the DNA sample would prove his innocence.”[41]The analysis was based on a statement quoted from a 2008 publication written by Ron Michaelis, Robert Flanders, and Paula Wulff:

Postconviction test results are not always exculpatory. In addition, exculpatory test results will not necessarily free the convicted individual. If the evidence does exclude the petitioner, the court must weigh the significance of the exclusion in relation to all the other evidence. . . . Not finding the petitioner’s DNA does not automatically indicate the case should be overturned, however. In a rape case, for example, the perpetrator may have worn a condom, or not ejaculated. In some cases, the absence of evidence is not necessarily evidence of the defendant’s absence or lack of involvement in the crime.[42]

The problem with this argument that a negative result would not exonerate the principal accused because the victim could have had sexual relations with another man prior to the incident is that it “would unrealistically raise the bar of evidence” for the defense, which is not the proper party to carry the burden of proof, simply because the accused shall be presumed innocent until the contrary is proved.[43]

That there was a conviction by the trial court does not change the presumption because the case was still on appeal to the Court of Appeals then to the Supreme Court. In the case of In Re Conviction of Judge Angeles,[44] it was held that since the conviction of crime by the trial court was on appeal, not having attained finality, the respondent in that cases still enjoyed the constitutional presumption of innocence:

[T]he existence of a presumption indicating the guilt of the accused does not in itself destroy the constitutional presumption of innocence unless the inculpating presumption, together with all the evidence, or the lack of any evidence or explanation, proves the accused’s guilt beyond a reasonable doubt. Until the accused’s guilt is shown in this manner, the presumption of innocence continues.[45]

Another reasoning in line with this holding is that the semen sample itself was not formally offered by the prosecution, but only the photographs of the glass slide containing such because the purpose of the prosecution was only as “to proving that [the victim] was in fact raped and not that [the principal accused] was the source of the sperm/semen.”[46]

Justice Sereno points out that the semen sample is relevant and material, since in this case, the principal accused’s identity was the fact in issue. According to her, the defense can use the said evidence not “to prove nor to disprove the commission of rape, but to pinpoint the identity of the assailant”[47]

In this case, semen with spermatozoa was in fact obtained, and it did possess exculpatory potential that might be beneficial to the accused. In Tijing v. Court of Appeals, we held that “courts should apply the results of science when competently obtained in aid of situations presented, since to reject said result is to deny progress.” Hence, it is the constitutional duty of the trial judge to afford all possible means to both the NBI and the counsel for accused, in order that such evidence may be scrutinized in open court.[48]

Thus, the semen sample is material because it is used by the defense to determine the probability or improbability that the principal accused was not the assailant; and it is relevant because it has “exculpatory value,” as required in the case of Trombetta, although by itself will not exonerate the accused.

In the case of People v. Yatar,[49] DNA technology is considered as a “uniquely effective means to link a suspect to a crime, or to exonerate a wrongly accused suspect, where biological evidence has been left. For purposes of criminal investigation, DNA identification is a fertile source of both inculpatory and exculpatory evidence.”

II. When the Silent Witness Speaks:

Re-examining the DNA Rules for Post-conviction Testing

Although the scientific revolution of DNA as evidence started as early as the 1980s in the U.S., the Philippines through the Supreme Court, only formalized its Rules on DNA evidence[50] on October 15, 2007. Under the said Rule, DNA evidence is defined as “the totality of the DNA profiles, results and other genetic information directly generated from DNA testing of biological samples.”

When DNA as evidence is material and pertinent to a particular case already pending in court, the party who wishes to use said evidence cannot just extract biological samples from a person and subject it to DNA testing. A court order issued upon motion of a party or motu proprio by the judge is required by the Rules to be secured first before DNA testing can be proceeded to.[51] When a DNA Testing Order is finally granted by the Court,said order is immediately executory and cannot be the subject of appeal.[52] As such any “petition for certiorari initiated therefrom shall not, in any way, stay the implementation thereof, unless a higher court issues an injunctive order.”[53] However, the “grant of DNA testing application shall not be construed as an automatic admission into evidence of any component of the DNA evidence that may be obtained as a result thereof.”[54]

This requirement for a DNA Testing Order is not necessary when it comes to a DNA testing procured after a judgment of conviction in a criminal case had been rendered by the trial court. Under section 6 of the DNA Rules, “post-conviction DNA testing may be available, without need of prior court order, to the prosecution or any person convicted by final and executory judgment,” provided that the following are present:

A biological sample,

That such sample is relevant to the case, and

The testing would probably result in the reversal or modification of the judgment of conviction.[55]

DNA evidence if properly preserved and tested not only in a highly scientific but also in a dependable manner, is given high probative value[56] and is taken as a very reliable[57] piece of evidence. As such, even after a judgment of conviction, acquittal can still be achieved, that is, if the post-conviction DNA testing gives out results that are favorable to the convict.[58]

A. Preservation of Post-conviction DNA

The primary issue of contention in post-conviction DNA testing is the issue of evidence preservation. This is a critical issue considering that as of 2010, case disposal in the Philippines is as low as 33 percent for the Regional Trial Courts, 40 percent with the Court of Appeals and 55 percent for judicial matters in the Supreme Court.[59] Hence, together with increasing backlog, trials can last for years without decision.

Biological samples from where DNA can be obtained as evidence must be carefully handled, maintained and preserved, in order for it to be useful throughout the lifetime of a case, which under the Rules, includes the period, during which the convict serves his sentence in prison.[60] Under the DNA Rules, the preservation of DNA evidence is the responsibility of both the court where the case is pending and the appropriate government agency involved in handling DNA evidence for the case. Pertinent here is section 12 of the DNA Rules, which provides:

The trial court shall preserve the DNA evidence in its totality, including all biological samples, DNA profiles and results or other genetic information obtained from DNA testing. For this purpose, the court may order the appropriate government agency to preserve the DNA evidence as follows:

In criminal cases:

i. for not less than the period of time that any person is under trial for an offense; or

ii. in case the accused is serving sentence, until such time as the accused has served his sentence;

In all other cases, until such time as the decision in the case where the DNA evidence was introduced has become final and executory.

The court may allow the physical destruction of a biological sample before the expiration of the periods set forth above, provided that:

A court order to that effect has been secured; or

The person from whom the DNA sample was obtained has consented in writing to the disposal of the DNA evidence.

Much responsibility lies in the hands of those given the task to handle biological samples from where DNA evidence can be obtained. The court, the law enforcement officers given the charge of obtaining biological samples and the laboratory scientists tasked in conducting the DNA tests, all play a significant part in the preservation of DNA evidence. Where there is insufficient direct evidence regarding the commission of a crime, DNA evidence can be the mute witness in sustaining a conviction or an acquittal of an accused.

In Yatar,[61]despite the non-existence of the DNA Rules then, the Court had given much import to the DNA evidence obtained from the semen sample acquired from the body of the rape victim in order to sustain conviction. In giving much reliance on the DNA, the Court applied a the principle enunciated in Daubert v. Merrell Dow,[62]“that pertinent evidence based on scientifically valid principles could be used as long as it was relevant and reliable”[63]:

Admittedly, we are just beginning to integrate these advances in science and technology in the Philippine criminal justice system, so we must be cautious as we traverse these relatively uncharted waters. Fortunately, we can benefit from the wealth of persuasive jurisprudence that has developed in other jurisdictions.

. . . .

. . . . Applying the Daubert test to the case at bar, the DNA evidence obtained through PCR testing and utilizing STR analysis, and which was appreciated by the court a quo is relevant and reliable since it is reasonably based on scientifically valid principles of human genetics and molecular biology.[64]

B. Whose fault is it, anyway?[65] Pointing the fingers to the accused for all DNA testing failure

In the recent case of Skinner v. Switzer[66], the Texas Court of Criminal Appeals denied the accused’s access to the DNA testing for not showing that he had no fault in the failure to test the evidence, hence, the accused “must now convince the federal district court that the statute as construed by the state courts rendered the statutory post-conviction relief procedures ‘fundamentally inadequate to vindicate the substantive rights provided.’”[67]

In Skinner, the accused was convicted of murdering his girlfriend and her two adult sons. During trial, certain pieces of DNA and fingerprint evidence were tested and presented at trial – some implicating Skinner, and some did not. His defense counsel then declined testing of other physical evidence, fearing that the results would incriminate him.

In the U.S., the merit of a prisoner’s request for the DNA testing is determined by what is provided in their State law. A narrow interpretation has often been made holding that statutes do not apply to specific groups of convicts or circumstances not otherwise stated in the law. The Illinois Supreme Court, for instance, denied DNA testing access to those prisoners who have pled guilty because the statute states that the prisoner must establish a prima facie case that “identity was the issue in the trial which resulted in his or her conviction.”[68]

However, other State Supreme Courts have reversed such narrow interpretations. The Pennsylvania Supreme Court, for instance, overturned the holding that the DNA testing statute barred access to DNA testing by prisoners who had voluntarily confessed. The Tennessee Supreme Court also reversed the interpretation that only the comparison of “the petitioner’s DNA to samples taken from biological specimens gathered at the time of the offense” was authorized, remarking on the two purposes of DNA testing statutes: (1) exonerating the innocent and (2) identifying the true perpetrators. Hence, holding such narrow holding as “incorrect because it overlooked the latter purpose” and “inappropriately limited the statute’s reach.”

The Supreme Court in Skinner ultimately held that DNA testing provided by state statute were not required to seek writs of habeas corpus, which provided for more restrictions, but could instead use 42 U.S.C. § 1983.[69] The said section was the “proper vehicle” because “[s]uccess in his suit for DNA testing would not ‘necessarily imply’ the invalidity of his conviction” as the results could be exculpatory, inculpatory, or inconclusive.”[70] Hence, the decision focused not on the accused’s “ultimate goal” to be exculpated and released but only on his “immediate goal” of gaining access to untested physical evidence.

This is in stark contrast to the tenor of the Supreme Court in the 2004 decision of De Villa v. Director of New Bilibid Prisons,[71] which gives the impression that the Court sanctioned the accused for not being abreast with scientific revolutions in evidence such as DNA testing. It is important to note however that this decision came out three years before the DNA Rules were promulgated. Such Rules would now warrant acquittal should the DNA evidence dictate so.

In De Villa, a case resolved months after Yatar, the crime of rape resulted in the conception of a child by the victim. The Court was faced with the question of whether to uphold a post-conviction DNA test conducted on biological samples recovered from the accused, the alleged father, and the child borne out of the commission of the crime.[72] The Court resolved the issue by construing the DNA evidence recovered from the father and the subsequently born child as evidence. The conclusion however is that the case can no longer be reopened for new trial:

[A]lthough the DNA evidence was undoubtedly discovered after the trial, we nonetheless find that it does not meet the criteria for “newly-discovered evidence” that would merit a new trial. Such evidence disproving paternity could have been discovered and produced at trial with the exercise of reasonable diligence.

. . . [That accused] was “unaware” of the existence of DNA testing until the trial was concluded carries no weight with this Court. Lack of knowledge of the existence of DNA testing speaks of negligence, either on the part of [the accused] or [his] counsel. . . . [T]his negligence is binding upon [him].

. . . [R]elief will not be granted to a party who seeks to be relieved from the effects of the judgment when the loss of the remedy at law was due to his own negligence, or to a mistaken mode of procedure.[73]

An observation can also be made of the contradiction in the reasoning of the Court between Webb and De Villa.

Webb, as earlier discussed, passed the blame to the principal accused when the semen obtained from the victim in 1991, which is also the biological sample pertinent for post-conviction DNA testing, had gone missing.

The Court in De Villa on the other hand faulted the accused for not being able to present the DNA evidence favorable to him early on during the trial stage. Despite the absence of the DNA Rules during that time, the Court ruled that the unawareness of the accused of the use of DNA as evidence is not an excuse for his late presentation. Said unawareness is tantamount to negligence on the part of the defense.

This is in contrast with Webb, wherein the Court excused itself and the law enforcement officers in charge of preserving the biological sample when the same had gone missing, rationalizing that during that time when the samples were taken, the DNA Rules were not yet existing. In these two inconsistent rulings, the Court seemingly pointed the finger at the accused, whether in disallowing DNA evidence or in not being able to use DNA evidence due to the loss of the biological samples.

The Court to justify its ratios on these two cases, narrowed on the existence or non-existence of the DNA Rules when these cases were decided. This is clearly not the proper direction if the Court is to set a precedent regarding the use of DNA evidence in post-conviction DNA tests.

III. Swearing in the DNA Witness

Policy Recommendations for Post-Conviction DNA Testing

Two important policy issues must be considered: (1) preservation of DNA evidence and (2) compensation of the wrongfully convicted.

On the issue of preservation, despite of the existent DNA Rules on Evidence, the State should enact a policy either via statute or administrative rules and regulations for the obtaining and handling of biological samples i.e. use of gloves and other uncontaminated paraphernalia, and labeling of samples. This is to ensure that law enforcement officers and laboratory officers have adequate knowledge regarding the proper chain of custody to ensure the preservation of biological samples. Forensic experts or experienced individuals in the fields of science must be consulted and their inputs regarding such matter must be considered.

There should also be a central repository of biological samples where the same will be kept in order to be protected and preserved during the lifetime of the case where it is being used. This central repository which can be under the control and supervision of the Philippine National Police (PNP) or the National Bureau of Investigation (NBI) will be a library of some sorts of the biological samples, where they will be frozen and labeled in order for it to be available for future use, i.e. post-conviction DNA testing. In this way, these biological samples will be protected from any tampering and contamination which might affect its reliability and probative value as source of evidence. The creation of this central repository will also ensure that said biological samples will always be available should the need for testing them arise.

The problem with the current DNA Rules on preservation is that it is enacted by the judiciary in its rule-making power but addressed to the trial courts, empowering the latter to order government agencies, which falls under the executive branch.[74]

The legislature or the executive should consider requiring automatic preservation of all physical and biological evidence for unresolved cases, those with specific timeframes or those applicable to certain crimes, without need for a petition of the accused for preservation thereof.[75] After all, there is no post-conviction right to counsel, who could ensure that the prisoner would exhaust such remedies.

Taking the policy a step further, the preservation rule may consider vacating the conviction and granting a new trial to the accused. The DNA results may also be presumed as having exculpatory value[76] such that if there is destruction or negligence leading to the loss of DNA evidence, there will be sanctions for those found responsible for such loss.

On the issue of compensation, Congress should consider the social, monetary and emotional cost of the wrongful conviction of a person. The experience in the U.S. is that those who have been released for wrongful incarceration through post-conviction DNA testing have been imprisoned for twelve years on the average.

The agony of prison life and the complete loss of freedom are only compounded by the feelings of what might have been, but for the wrongful conviction. Deprived for years of family and friends and the ability to establish oneself professionally, the nightmare does not end upon release. With no money, housing, transportation, health services or insurance, and a criminal record that is rarely cleared despite innocence, the punishment lingers long after innocence has been proven.[77]

The wrongfully convicted ought to be given support for his immediate needs such as basis necessities like food and transportation. He or she shall also be provided assistance by the State to secure housing and livelihood, medical care, counseling, and legal services to acquire such benefits, expunge criminal records, and regain property and even custody of his children.[78]

In the United Kingdom, for instance, the legislative framework under the Criminal Justice Act of 1988 for compensation is grounded on the principle that there has been “miscarriage of justice” due to such wrongful conviction:

[W]hen a person has been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice, the Secretary of State shall pay compensation for the miscarriage of justice to the person who has suffered punishment as a result of such conviction.[79]

In the case of R (Adams) v. Secretary of State for Justice,[80] the members of the U.K. Supreme Court delved into a discussion of what a newly discovered fact meant: “a fact which was discovered by him or came to his notice after the relevant appeal proceedings had been finally determined or a fact the significance of which was not appreciated by the convicted person or his advisers during the trial or appeal proceedings.”[81] Hence, the legislature and the judiciary may consider determining whether the post-conviction DNA test results would be newly discovered evidence that would make the case fall under the definition of a miscarriage of justice.[82]

Conclusion

There is the legal adage that “[i]t is better that ninety nine escape . . . than that one innocent man be condemned.”[83] This dread of wrongful convictions can now be addressed through DNA testing and post-conviction remedies, given that they be properly recognized and correctly used by the State through its Courts and law enforcement agencies. In the U.S., 75 percent of post-conviction exonerations have been the result of wrongful identification, as in the case of Webb.[84] The experience of the United States also shows the value of the DNA post-conviction remedy. Since the first convict exculpated in 1989, 289 post-conviction DNA exonerations have been made and 139 of the cases have identified the real perpetrators.[85] The figure cited is very powerful especially in light of the thousands of convictions in the Philippines each year.[86]

Biological evidence contains DNA that may serve as the silent witness especially in criminal cases. Thirteen years after the promulgation of the DNA Rules, the Philippine legal system has yet to assimilate the scientific reliability and consistency of DNA testing versus the inherently fallacious and unreliable eyewitness identification.

It can be concluded that until policies on preservation and compensation are fomented either by Congress, the Executive or the Judiciary, decisions on post-conviction DNA testing would be bleak and would rely heavily on U.S. jurisprudence and experience, as what can be seen in Webb.

Hence, due to the lack of clear policy, at least for the DNA issue, the majority opinion and separate opinions were more of an appreciation of the facts, without truly establishing doctrine on what standards would apply should post-conviction DNA testing could not be availed of due to loss or destruction of the evidence, or if existing, if the procedures were correctly followed by the imprisoned petitioner.

DNA is not just a scientific fad or a mere product of the technological revolution the world is in today. As the storehouse of a person’s unique genetic make-up, this diagonal helix, though invisible to the naked eye, is able to speak a thousand words, perhaps even more truthful and trustworthy than any statement that might come out of a person’s lips. The significance of DNA as evidence can no longer be understated because this silent witness, if only able to speak and amplify its soft yet earnest voice, can cause the conviction or acquittal of a person.

[14] While only questions of law may be entertained by the Supreme Court in a petition for review on certiorari, such rule is not ironclad and admits certain exceptions: (1) the conclusion is grounded on speculations, surmises or conjectures; (2) the inference is manifestly mistaken, absurd or impossible; (3) there is grave abuse of discretion; (4) the judgment is based on a misapprehension of facts; (5) the findings of fact are conflicting; (6) there is no citation of specific evidence on which the factual findings are based; (7) the finding of absence of facts is contradicted by the presence of evidence on record; (8) the findings of the Court of Appeals are contrary to those of the trial court; (9) the Court of Appeals manifestly overlooked certain relevant and undisputed facts that, if properly considered, would justify a different conclusion; (10) the findings of the Court of Appeals are beyond the issues of the case; and (11) such findings are contrary to the admissions of both parties. (Josefa v. Zhandong Trading Corp., G.R. No. 150903, 417 SCRA 269, Dec. 8, 2003; see also Larena v. Mapili, G.R. No. 146341, 408 SCRA 484, Aug. 7, 2003 (citing Gonzales v. Ct of Appeals, 358 Phil. 806, 821, Oct. 30, 1998; Polotan Sr. v. Ct of Appeals, 357 Phil. 250, 256-57, Sep. 25, 1998); see further Lacanilao v. Ct of Appeals, 330 Phil. 1074, 1079-80, Sep. 26, 1996).

[25]Id. at 200-91, where Villarama agreed with the majority on the holding on the issue of the DNA analysis, but dissented on the other issues, and voted to dismiss the appeal and uphold the conviction of the accused.

[45]Id.See Mangubat v. Sandiganbayan, 227 Phil. 642, 646 (1986), where the Court held that “despite her convictions, ‘[respondent-accused] has still in her favor the constitutional presumption of innocence . . . (and until) a promulgation of final conviction is made, this constitutional mandate prevails.’”

[51] Application for DNA Testing Order. – The appropriate court may, at any time, either motu proprio or on application of any person who has a legal interest in the matter in litigation, order a DNA testing. Such order shall issue after due hearing and notice to the parties upon a showing of the following:

A biological sample exists that is relevant to the case;

The biological sample: (i) was not previously subjected to the type of DNA testing now requested; or (ii) was previously subjected to DNA testing, but the results may require confirmation for good reasons;

The DNA testing uses a scientifically valid technique;

The DNA testing has the scientific potential to produce new information that is relevant to the proper resolution of the case; and

The existence of other factors, if any, which the court may consider as potentially affecting the accuracy of integrity of the DNA testing.

This Rule shall not preclude a DNA testing, without need of a prior court order, at the behest of any party, including law enforcement agencies, before a suit or proceeding is commenced.

[56] In assessing the probative value of the DNA evidence presented, the court shall consider the following:

The chain of custody, including how the biological samples were collected, how they were handled, and the possibility of contamination of the samples;

The DNA testing methodology, including the procedure followed in analyzing the samples, the advantages and disadvantages of the procedure, and compliance with the scientifically valid standards in conducting the tests;

The forensic DNA laboratory, including accreditation by any reputable standards-setting institution and the qualification of the analyst who conducted the tests. If the laboratory is not accredited, the relevant experience of the laboratory in forensic casework and credibility shall be properly established; and

The reliability of the testing result, as hereinafter provided.

The provisions of the Rules of Court concerning the appreciation of evidence shall apply suppletorily.

DNA Rules, § 7.

[57] In evaluating whether the DNA testing methodology is reliable, the court shall consider the following:

The falsifiability of the principles or methods used, that is, whether the theory or technique can be and has been tested;

The subjection to peer review and publication of the principles or methods;

The general acceptance of the principles or methods by the relevant scientific community;

The existence and maintenance of standards and controls to ensure the correctness of data generated;

The existence of an appropriate reference population database; and

The general degree of confidence attributed to mathematical calculations used in comparing DNA profiles and the significance and limitation of statistical calculations used in comparing DNA profiles.

[68] “Analyses of successful DNA testing claims reveal the problematic nature of such an interpretation: of the first 265 prisoners to be exonerated by DNA evidence, 22 had pled guilty.” Id.

[69] CIVIL ACTION FOR DEPRIVATION OF RIGHTS – Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

The preservation of all items of physical evidence, regardless of whether an individual files a petition for post-conviction DNA testing

The retention of crime scene evidence that is associated with unsolved cases

The retention of all items of physical evidence secured in connection with a felony for the period of time that any person remains incarcerated, on probation or parole, involved in civil litigation in connection with the case, or subject to registration as a sex offender

Sanctions for parties responsible for the improper destruction of evidence and provisions enabling courts to determine the appropriate remedy when evidence is improperly destroyed.

[76] While not applicable to the Philippine jurisdiction, which does not adhere to the jury system:

Ideally, legislation requiring the preservation of evidence will include the following provisions:

If biological evidence is destroyed, the Court may vacate the conviction, grant a new trial, and instruct the new jury that the physical evidence in the case, which could have been subjected to DNA testing, was destroyed in violation of the law.

The Court will also instruct the jury that if it finds that the evidence was intentionally destroyed, it may presume that the results of the DNA testing would have been exculpatory.

[80] [2011] UKSC 18, where the majority of the members of the U.K. Supreme Court held that a miscarriage of justice occurred whenever a new fact “so undermines the evidence against the defendant that no conviction could possibly be based upon it.” This “formulation” fell under categories 1 and 2, but not under categories 3 and 4. See Craven, infra note 82. The Court also held that it is the Secretary of State’s duty to decide in each individual case if the prisoner has suffered a “miscarriage of justice” as provided for in the U.K. Criminal Justice Act of 1988, § 133.

[81]Id. (citing Irish Crim. Proc. Act, § 9 (1993), adopted by Lord Phillips because “[m]any who are brought before the criminal courts are illiterate, ill-educated, suffering from one or another form of mental illness or of limited intellectual ability. A person who has been wrongly convicted should not be penalised should this be attributable to any of these matters.”).

[82]See Edward Craven, Case Comment: R (Adams) v. Secretary of State for Justice, available at http://freelegalweb.org/8064/2011/05/case-comment-r-adams-v-secretary-of-state-for-justice-2011-uksc18/(date last visited Mar. 28, 2012), discussing the four categories were formulated by Lord Justice Dyson of the Court of Appeals as follows:

Category 1: Cases where fresh evidence shows that the defendant is innocent of the crime of which he has been convicted.

Category 2: Cases where fresh evidence is such that, had it been available at the time of the trial, no reasonable jury could have properly convicted the defendant.

Category 3: Cases where fresh evidence renders the conviction unsafe in that, had that evidence been available at the time of the trial, a reasonable jury might or might not have convicted the defendant.

Category 4: Cases where something has gone seriously wrong in the investigation of the offence or the conduct of the trial, resulting in the conviction of someone who should not have been convicted.

[84] The case of Webb may not fall squarely into this because of the allegedly positive identification of the witness who claims to know and was accompanying the alleged culprits during the incident. However, eyewitness misidentification is still a leading cause and must not be discounted.

[86] According to the Supreme Court, Annual Report 40 (2010), there are 125,378 decided cases per year (without identifying the type of case, i.e., if criminal, civil, special proceeding, or administrative).

DREAMS FOR SALE: TRADITIONAL CULTURAL EXPRESSIONS (TCES) AND INTELLECTUAL PROPERTY RIGHTS OF THE INDIGENOUS PRAGMATIC GROUP AS EXEMPLIFIED BY THE DREAMWEAVERS*

“Although we are in different boats you in your boat and we in our canoe we share the same river of life.”[1]

“In every Indigenous community I’ve been in, they absolutely do want community infrastructure and they do want development, but they want it on their own terms. They want to be able to use their national resources and their assets in a way that protects and sustains them. Our territories are our wealth, the major assets we have. And Indigenous people use and steward this property so that they can achieve and maintain a livelihood, and achieve and maintain that same livelihood for future generations.”[2]

Introduction

More than seven thousand islands make the Philippines a good tourist destination for sand, sea and surf. An archipelago divided by waters, the Philippines is a diverse country in a small package. A day’s travel around the country will take you from the unearthly indigenous villages in the northern and southern tips of the country to the idyllic islands and surreal coral reefs scattered from Luzon to Mindanao. This perfect setting of sweeping rice plains, jungled peaks, razor-sharp cliffs, enclosing placid lagoons and white ribbons of sand, inspires culture and creativity in its people.

The population of the Philippines is currently estimated at 91 million strong, with ten percent (10%) being indigenous people (IP).[3] In the 7,101 islands that constitute the Philippine archipelago, there are about 110 indigenous groups. The majority of these reside in the southern regions of the Philippines, with 70 percent (70%) on the Islands of Mindanao, Sulu archipelago, Palawan and Mindoro. the remainder are primarily concentrated in the Cordillera region to the north.[4] The heritage of these indigenous cultural groups provides the new generation with a glimpse of how the early inhabitants of the country lived.

The number of Traditional Cultural Expressions (TCEs) in the Philippines is as varied and multifaceted as the number of indigenous cultural communities residing in the country. Despite its diversity, every group is known to have its own distinct weaving industry.[5] Being a tropical country, the Philippines has a wide variety of raw materials that can be used for weaving. Materials such as abaca, hemp, cotton, and water lilies grow in abundance and are used across the archipelago with each community using the materials selectively to produce a unique and distinctive product. One such indigenous cultural community with a distinct weaving product are the T’boli.[6] Located on the shores of Lake Sebu in South Cotabato, Mindanao, the women of the T’boli are highly regarded as expert weavers.

The T’bolis are the indigenous people occupying the southern edge of the Cotabato and the Southwest coast range of the province of South Cotabato. The greatest concentration of the T’boli population used to be in the area surrounding Lake Sebu. However, with the influx of lowlanders, many of the T’boli were displaced from their ancestral lands and driven higher into the mountains.

The T’bolis are primarily known for being the creators of the T’nalak[7], a type of textile fashioned entirely from abaca. They are dubbed as dreamweavers, transposing the scenes that present themselves in their dreams onto patterns woven into the T’nalak. Although the patterns are said to be inspired by their physical surroundings, they can be considered a fusion of objects found in their natural world as well as elements of the unique T’boli culture which is steeped in abstractions. To an outsider, the design of the T’nalak may not make sense, but to the weaver it tells a colourful story[8] – one given to her[9] in a dream or one told and retold to her by her ancestors.

The production of the T’nalak is regarded as a community or family endeavor with the participation of both men and women. The T’boli women usually do the lighter, although admittedly more arduous, job of weaving the abaca. The men, on the other hand, harvest the abaca and process the twine for weaving.[10] The whole process of producing a T’nalak takes about four months.[11] It is easy to see how this process maybe shortened in less than a day, or maybe less than an hour, by employing the use of a machine which can churn out six meters[12] or more of cloth in no time. The T’bolis, however, refuse to take shortcuts and continue to follow the weaving process practiced and taught to them by their ancestors since time immemorial.

In the olden times once a T’nalak was finished, it would be rolled up and wrapped in a cloth, only to be displayed during special occasions. It was considered an essential gift when one of the T’boli would give birth, believing it helps to safely deliver the baby, when used as a pre-natal covering. It was also exchanged along with other valuable pieces of property such as heirlooms, gongs, work animals, and swords during arranged marriages. The sanctity of the T’nalak in the culture of the T’bolis is clearly expressed in the tradition that it is forbidden to step on the T’nalak. Likewise, cutting it was considered taboo, and believed to bring sickness to the weaver or to the person cutting it. These days, however, many of the old taboos have been lost in favor of practical considerations. The finished work is either shipped, prepared for pickup by the contractor, or stored to be shown to tourists visiting Lake Sebu. Moreover, the T’boli’s now put specific marks on the cloth, usually at three meters, where it may be cut. The current significance of the T’nalak now lies in the fact that it is one of the major source of income for some T’boli households.

Part I of this paper discusses how the T’nalak is currently protected under the Philippines sui generis law for indigenous people’s protection: the Indigenous Peoples Rights Act and its Implementing Rules including the then pending bill on Community Intellectual Property Protection Act (CIPRA) Philippine law. Part II discusses intellectual property laws — copyright, trademark and other concepts currently embodied in the general laws of the Philippines. Part III addresses the possibility of applying Human Rights for the protection of TCEs. In Part IV of this paper, an examination and analysis of international conventions, treaties and international agreements existing and which the Philippines has signed and ratified and is now part of the national laws of the Philippines by virtue of the incorporation clause in the 1987 Constitution. A look into the jurisprudence, local and international, on the intellectual property rights of indigenous people is also included in this part. Part V looks at the sui generis legislations from different countries vis-a-vis the WIPO model law. Under Part VI, the necessity for a sui generis law for the protection of indigenous intellectual property is argued. The formulation of this sui generis[13]protection recommended in this part is based on the observation on the T’bolis who are representative of the indigenous group referred to in this paper as the “pragmatic group”. The scope for the suggestions for a sui generis legislation in this paper are based on national legislations, both local and abroad.

Traditional Cultural Expressions and the T’boli’s

T’nalak are woven dreams.

They are the hope sent out by a people that weave it and value it, to the dominant culture that can only appreciate it as artifact. But if its production and quality

can be sustained by the weavers, t’nalak may serve to see the T’boli

through a transition in their culture, and keep the old traditions alive[14].

The scope of the debate on protection of Traditional Cultural Expressions (TCEs) ranges from linguistic technicalities to intellectual property inclusion. The issue with regard to proper terminology to refer to cultural properties and expressions of indigenous people has raged since the 1980s when the World Intellectual Property Organization (WIPO) and the United Nations Educational, Scientific, and Cultural Organization (UNESCO) brought together a Group of Experts on the Protection of Expressions of Folklore by Intellectual Property[15] This resulted into putting cultural pieces of property and expressions of indigenous peoples under the generic term ‘folklore’. In response to comments that the term ‘folklore’ is derogatory and connotes an inferiority of these types of art, traditions and processes over contemporary works, indicating a lower or superseded civilization,[16] WIPO and UNESCO deemed it necessary to come up with a more appropriate definition. Thus, during the 1997 World Forum of on the Protection of Folklore, WIPO and UNESCO came up with this definition of the term folklore: “a group oriented and tradition-based creation of groups or individuals reflecting the expectations of the community as an adequate expression of its cultural and social identity; its standards are transmitted orally, by imitation or by other means. Forms of folklore include, among others, language, literature, music, dance, games, mythology, rituals, customs, handicrafts, architecture, and other arts.”[17] Despite this new definition, however, the debate continued with some representatives claiming that the term folklore has a limited scope depending on the geographical location.[18] The term “Indigenous Cultural and Intellectual Property” was also proposed.[19]

The term Traditional Knowledge was subsequently introduced, replacing the term folklore and effectively shifting the parameters of discourse. The terms ‘traditional cultural expressions’ (TCEs) is used by WIPO as a neutral working term due to some reservations expressed by some communities about the negative connotations of the word, particularly the term “traditional”. The terms “traditional cultural expressions”, otherwise known as “expressions of folklore”, “indigenous culture and intellectual property” and “tangible and intangible cultural heritage” as well as its scope and meaning have been discussed comprehensively both at the local and international levels. These terms potentially cover an enormous variety of customs, traditions, forms of artistic expression, knowledge, beliefs, products, and processes of production that originate in many communities throughout the world.

TCEs pertain to productions consisting of characteristic elements of traditional artistic heritage developed and maintained by a community of a certain country or by individuals reflecting the traditional artistic expectations of such a community. This term is used specifically for (a) verbal expressions, such as folk tales, folk poetry and riddles, signs, symbols, and indications; (b) musical expressions, such as folk songs and instrumental music; (c) expressions by actions, such as folk dances, plays and artistic forms or rituals; whether or not reduced to a material form, and (d) tangible expressions, such as productions of art, crafts, musical instruments, and architectural forms.[20] For purposes of discussing these forms of art in this paper, the term “traditional cultural expressions” or TCEs and expressions of culture would be used interchangeably.

A nation’s cultural heritage lies at the heart of its identity, linking its past with its present and future. While in its most basic sense tradition may be regarded as a cyclical process of imitation and reproduction, it should be remembered that tradition, its practice and propagation, is also about innovation and creation within the traditional framework.[21] While faithful reproduction would, in layman’s term, render the particular TCE or artwork ‘original’, the mere recreation and replication of past traditions may not necessarily be the best way of preserving identity and improving the economic situation of indigenous communities. The ability of many tradition-bearing communities to combine tradition with influences and cultural exchanges of modernity for the purpose of improving their social and economic circumstances is best seen through the production of handicrafts.[22]

TCEs are not static creations but are as alive and fluid as the people who create them and whose culture is embedded in each expression. It is a fact that most indigenous groups no longer live in isolation and have started to integrate and adapt the culture of those living with them and in their general vicinity.[23] With the changing landscape within which indigenous people nurture their culture and heritage, it is important to recognize that society and folklore share a symbiotic relationship with society — with folklore producing its impact on society and society in turn being influenced by folklore.[24] As such, the nature of folklore has been transforming over the ages. Some experts argue that the influence of society on folklore is even greater than the influence of folklore to modern society. Since society is dynamic, this renders folklore animate as well, absorbing substantial societal changes and moving parallel to society.

The effect of society is specially apparent in indigenous communities who, because of the influx of migrant settlers in their community, are forced to leave the areas they have previously inhabited, or are compelled to share it with outsiders. This process of integration for the T’bolis began in the 1940s[25] when the first wave of Christian settlers set foot in their indigenous community. Armed with land grants and timber licenses, they encroached upon the T’boli homelands and disenfranchised those who had been living on the land since time immemorial. Deprived of the land area and lake where they used to obtain their source of food freely, the T’bolis had to capitalize on what they do well – their crafts. The T’bolis are expert craftsmen. Aside from their famous T’nalak, the women are also well versed in the craft of embroidery and beads-making while the men, and some women as well[26], are good in casting brass. They have used these skills to produce crafts which they sell. Deprived of their former source of livelihood — fishing, hunting and agriculture — the T’bolis now heavily rely on their crafts as a source of income.

With the availability of traditional and indigenous art to outsiders, and the inflow of foreign resources to the indigenous people, convergence between cultures has taken place. This can be seen in the contemporary art of the T’boli, as well as their crafts. It is undeniable that indigenous people and communities derive inspiration and innovate under the influence of contemporary culture. On the other hand, TCEs provide a source of inspiration and creativity for parties outside the traditional customary context. This influence is most apparent in the entertainment, fashion, publishing, design and other creative industries — from the small cooperatives and merchants within the community to Hollywood and big designer names.[27] Despite this seemingly mutualistic interaction, the relationship between tradition, modernity and the marketplace can hardly be described as a happy one. Indigenous and traditional communities have expressed concerns that the distinct and diverse qualities of the world’s multiple cultural communities are threatened by uniformity brought on by new technologies and the globalization of culture and commerce.[28] This concern is further magnified by the debate that expressions of traditional cultures and traditional forms of creativity and innovation are not adequately protected by existing intellectual property laws.

During the extensive fact-finding and consultations undertaken by WIPO, indigenous groups and traditional communities have expressed various needs related to intellectual property. These needs, according to the research, involve the use of intellectual property in three ways: (1) intellectual property to support economic development, that is, such communities wish to claim and exercise intellectual property in their tradition-based creations and innovations to enable them to exploit such commercially , (2) intellectual property protection to prevent unwanted use by others; some communities may wish to claim intellectual property to actively exercise intellectual property rights that prevent the use and commercialization of their cultural heritage by outsiders, including culturally offensive or demeaning use; use which may need to be prevented could include, for example, uses that falsely suggest a connection with a community, derogatory, libelous, defamatory, or fallacious uses, and inappropriate uses of sacred and secret TCEs; and (3) prevention of others acquiring intellectual property rights over TCEs, i.e. to prevent others from gaining or maintaining intellectual property over derivations and adaptations of TCEs and representations, which entails the use of defensive mechanisms to block or pre-empt third parties’ intellectual property rights that are considered prejudicial to the communities interests, and to the integrity of their cultural heritage and cultural expressions. These needs identified by WIPO is consistent with the categorization used by Christine Haight Farley in her paper entitled Protecting Folklore for Indigenous Peoples: Is Intellectual Property the Answer?.[29]

In Farley’s paper, two sets of concerns involving indigenous people are presented. According to her research, while there are some indigenous groups who would like to have their TCEs remain within the indigenous community, another group, the pragmatics[30] as referred to in this paper, would want to be compensated for their contribution to the artwork through licensing, profit sharing, or other similar arrangements. They likewise seek to exclude competitors who are not members of the indigenous community from the market by preventing unauthentic products from being marketed as made by indigenous people, or producing goods bearing similarity to it. The concern for this group is focused on the ability to participate in the celebration of their indigenous culture by gaining control over the circulation of their imagery. This is important to them because, by gaining control, they are able to ensure an accurate articulation of indigenous culture,[31] and ensure that the investment in that culture goes back to their communities. The concern of the pragmatics may be said to fall on the first and third concerns identified by WIPO.

The T’bolis may be categorized as belonging to the “pragmatic group”, or based on Farley’s term, the “realists”[32]. This group includes indigenous people who want to be compensated for their contribution to the artwork in the form of licensing agreements, and the exclusion of non-indigenous competitors from the market by preventing unauthentic products from being marketed as made by indigenous people. This concern is underscored by the economic importance that the production of crafts brings to the T’bolis. The T’nalak used to play an important part of the T’boli’s culture due to the significant role it plays in the T’boli’s religion and their reverence for Fu Dalu, the God of Abaca. These days, although the T’nalak may still hold a significant role in the life of the T’bolis, it has lost its primarily religious purpose. Instead, the T’nalak plays an important role in providing income for the T’bolis. A walk around Lake Sebu – from the souvenir shops in resorts to small stores in the highway – would immediately reveal how important T’nalak is as a source of income. Not only are they able to sell the T’nalak as a souvenir item for visitors and tourists, but the cloth is also used as a material for different kinds of T’boli crafts like handmade bags, folders, decors, and traditional costumes. In the case of Lang Dulay, a T’boli who received the Gawad ng Manlilikha Award[33] in 1998, the importance of the T’nalak as a source of livelihood is further emphasized. As opposed to the retail cost of other T’nalaks, Lang’s work commands a price that is up to three times more expensive than the products of other T’boli women. Despite not being able to read nor write, she was advised to capitalize on her reputation. She now places her name on all her designs in order to raise its market value.[34]

Branded as exotic and ethnic, the T’nalak cloth and T’nalak designs have reached as far as New York City[35] and can be bought wholesale or on order via the internet.[36] Despite this, however, the economic plight of the T’boli people remains poor, with many still on what can best be described as a subsistence income.

I. Protecting the T’nalak under Philippine Laws

T’nalak are woven dreams.

T’boli women weave them, keen eyes and hands working together to judge lengths, to transfer patterns from memory to loom. T’nalak is made of the whitest abaca fibers connected end to end with the smallest possible knots and dyed red and blackest brown.

Its patterns are handed from mother to daughter, or bestowed on the weaver in dreams by

Fu Dalu, the spirit of the abaca. It is a product as much of the quietness of spirit as it is of skill, for not all women weave, and not all weavers dream.

The process begins with a dream.

Fu Dalu shows a pattern laid out on a loom and give it a name. The weaver remembers it entirely and gives it form in the loom. T’boli weavers believe if they do not weave the patterns given to them this way, they will fall ill. But not all weavers learn their designs in this way. Some patterns are handed down, from grandmother to grandchild. In this way also, some are lost forever[37].

A. Indigenous People’s Rights Act

Indigenous cultural communities (ICCs) are possessors of traditional knowledge. This knowledge is reflected in their weaves, crafts, dances, songs, poetry, arts and other TCEs. The variety and variations found in each indigenous community represent the diverse culture, customs and traditions these indigenous communities have. Despite these differences, however, what all these communities have in common is that the weavers, potters, carvers, painters, embroiderers, goldsmiths, and other indigenous artisans rarely enjoy the fruits of their labor. It is a major challenge for every country to protect and preserve their specialized skills and knowledge, and an even greater hurdle to ensure that their work provides a viable livelihood. The latter challenge is necessary, if not a prerequisite, of the former.[38]

The 1987 Constitution of the Philippines incorporates provisions for the recognition and promotion of the rights of indigenous cultural communities. Under the Declaration of Principles and State Policies, it is stated that “the State recognizes and promotes the rights of indigenous cultural communities within the framework of national unity and development.”[39] The creation of autonomous regions of the Cordilleras and Muslim Mindanao, where most indigenous groups reside, is also provided. Under Article X, Section 15 of the 1987 Constitution, the composition of these autonomous regions would be from provinces, cities, municipalities, and geographical areas sharing common and distinctive historical and cultural heritage, economic and social structures and other relevant characteristics. Consistent with the declaration of state policies under Article II, Article XII dealing with the National Economy and Patrimony, the State is mandated to protect the rights of indigenous cultural communities to their ancestral lands to ensure their economic, social, and cultural well-being.[40] These provisions which demonstrates the State’s resolve to foster preservation, enrichment and dynamic evolution of a Filipino national culture based on the principles of ‘unity in diversity’ in a climate of artistic and intellectual expression is reiterated in Article XIII, Section 14.[41]

The struggle for the establishment of a legal system to address the specific demand of the indigenous people finally found its expression under the Indigenous People’s Rights Act of 1997 (IPRA). Prior to the IPRA, there were no laws which dealt specifically with the protection of the rights of the indigenous peoples. The laws governing the indigenous people were the general laws of the land i.e. the Civil Code, the Revised Penal Code, and other similar laws of general application[42]. Under the provisions in Chapter VI of the IPRA, the intellectual property rights of the ICCs and Indigenous peoples include community intellectual rights, rights to indigenous knowledge systems, practices to develop their own sciences and technologies, and norms regarding access to biological and genetic resources[43].

The explicit recognition of community intellectual property rights is one the most remarkable provisions of the IPRA. This concept runs throughout its provisions and implementing rules. By attributing the intellectual property rights to the community, it effectively shifted the paradigm, in terms of recognizing indigenous intellectual property, from the individual to the community. According to this provision, the State must preserve, protect, and develop their cultural manifestations, whether of the past, the present or the future. As framed under the rules and regulations of the IPRA, cultural manifestations include archaeological and historical sites, designs, ceremonies, technologies, visual and performing art, literature as well as religious and spiritual property. It is through these bold and unambiguous terms enacted under the IPRA, that the legislation was successful in resolving the dichotomy between private ownership and community ownership, with the balance tilting in favor of the community responsible for maintenance and development of the vast resources of cultural biological and social heritage of the indigenous people.

Despite the novel provision of recognizing community ownership, these provisions are mainly focused on community ownership of tangible property — specifically, lands which are referred to under the law as ancestral domains. The lack of implementation and actionable provisions with regard to community intellectual property, is probably the reason why a separate bill for Community Intellectual Property Protection Act (CIPRA) was submitted. This bill, however, was not passed and hence, did not become law.

The only provisions which pertain directly to community intellectual property are Section 32 and 34 of the IPRA. Section 32 gave Indigenous People the right to practice and revitalize their own cultural traditions and customs. Towards this end, the State is mandated to preserve, protect and develop the past, present and future manifestations of their culture. A right to restitution of cultural, intellectual, religious, and spiritual property taken without their free and prior informed consent or in violation of their laws, traditions and customs is also provided. Full ownership, control and protection of their cultural and intellectual rights are also granted to the ICCs/IPs under IPRA, Section 34.

Although not directly relating to but nevertheless relevant with regard to community intellectual property, another laudable provision in IPRA is the concept of free and prior informed consent of the communities. In a study commissioned by WIPO, this is said to be the most important provision of the IPRA.[44] Under the law, the State is obliged to restore cultural, intellectual, religious and spiritual property taken without the communities’ free and prior informed consent. According to the rules, there must be a “consensus of all members of the indigenous communities to be determined in accordance with their customary laws and practices”[45] for consent to be valid. This guarantees that the community is free from all external manipulations, interference, and coercion. Another requirement is a disclosure of the full intent and scope of the activity is required.[46] The importance of recognizing and legislating the concept of community intellectual property is underscored by the Australian aboriginal cases. Mr. Bulun Bulun, the indigenous artist in one case said, “I am permitted by my law to create this artwork, but it is also my duty and responsibility to create such words, as part of my traditional Aboriginal land ownership obligation.”[47] Similarly, another artist, whose work was likewise misappropriated explained that, “As an artist whilst I may own the copyright in a particular artwork under western law, under Aboriginal law I must not use an image or story in such a way as to undermine the rights of all the other Yolngu (her clan) who have an interest whether direct or indirect in it. In this way I hold the image on trust for all the other Yolngu with an interest in the story.”[48]

The IPRA gave indigenous people rights which, though not novel under customary laws, are not previously embodied under national legislations. Further guidelines for the safeguarding of indigenous peoples rights and knowledge systems are embodied in the rules implementing IPRA. These include: (1) the right to regulate the entry of researchers and research institutions, (2) a written agreement concerning the purpose, design, and expected output of the research, (3) the need to recognize the source of the material taken in case the information obtained is published and (4) the supply of copies of research output to the communities concerned, and most importantly (5) the sharing of income derived from the said research output with the community concerned.[49]

Customary laws play a major role in the relationship of indigenous people with each other. It is argued that, as opposed to other systems, customary law provides a flexible solution, in that the indigenous customary law of each diverse indigenous group around the world can be applied to that group to protect its own TCEs. Herein lies the problem. The protection, and sanctions imposed in the customary law extends only to individuals subject to the customary law, that is, the members of the indigenous group[50]. To an outsider, customary laws do not have any relevance unless it is embodied within a national law which includes in its scope individuals not belonging to the indigenous group. With respect to this, it is worth noting that the importance of customary laws[51] is reflected in IPRA.[52] This may be seen through the numerous provisions included in the act which uses as a determinant factor for management and protection of the rights conferred therein the customary laws of the community and as may be seen under the IPRA’s declaration of state policies.[53] Whether or not the sanctions imposed by the indigenous group will be extended to third parties by this provision is yet to be seen. The efforts to apply customary law to ICCs/IPs is laudable, however, it might prove ineffective since a number of cultural poachers are neither citizens nor members of the ICC/IP concerned. Vindicating the rights granted by IPRA have to be remedied on the international level. That is, until and unless a legislation can be enforced beyond the borders of the State or taken to the international level, redress for violations of the ICCs’/IPs’ rights will never be complete.

The promise of IPRA lies not only within the provisions embodied therein. As a legislation to benefit ICCs/IPs, the IPRA may be used as a basis for the enactment of future legislation regarding issues which the IPRA was not able to address. Under the IPRA’s declaration of State Policies, the State shall consider the rights of Indigenous People in preserving their culture, tradition and institutions and shall consider these rights in the formulation of national laws and policies.[54] In addition, the State is also mandated to take measures, with the participation of the ICCs/IPs concerned, to protect their rights and guarantee respect for their cultural integrity, and to ensure that members of the ICCs/IPs concerned benefit on an equal footing from the rights and opportunities which national laws and regulations grant to other members of the population. Since it is merely contained in the declaration of State policies, which as a general rule is not actionable, these provisions merely serve as a guideline in the implementation and interpretation of the provisions of the IPRA. Currently, indigenous artists do not enjoy the protection of intellectual property laws. Since rights under intellectual property laws enjoy international recognition due mainly to the TRIPS agreement, the lack of intellectual property protection to ICCs/IPs greatly prejudices them.

As a legislation, the IPRA represents a shift of the State’s view towards Indigenous People and Indigenous People’s rights from the antagonistic and condescending attitude as exemplified by the 1919 decision of the Supreme Court in the case of Rubi v. Provincial Board of Mindoro[55] describing them as “of low grade of civilization” to one that recognizes their difference from other citizens and respects their rights accordingly. The IPRA, however, is not without criticisms. Right after its enactment, the IPRA was already criticised for being violative of the Constitution. Specifically, its critics say that it is inconsistent with the guaranteed right to “control and supervise the exploration, development, and utilization and conservation of natural resources.”[56] With the enactment of IPRA, which is now in implementation for fourteen (14) years, the Philippines has been regarded as one of the most active and progressive countries in Asia in terms of recognizing the rights of indigenous peoples and developing legislation to implement some of the recommendations on the Convention on Biological Diversity (CBD) in relation to bioprospecting.[57]

A novel concept demonstrating the intersection of indigenous tradition on land ownership and the modern laws of property is seen in the provision of the IPRA recognizing ancestral domains. Although it pertains to ownership of land, this provision in the IPRA likewise benefits the protection of TCEs, albeit indirectly. The indigenous people’s lands and their culture have an inseparable relationship. Unlike modern artists who merely derive inspiration from places, the culture – their cultural expressions and expressions of folklore – of the indigenous people is inextricably tied with their ancestral domains. Not only do traditional artists and communities derive their creativity from their surroundings but their creations are also about them and in most cases believed to be given by nature as their gifts. The dreamweavers, for example, believe that Fu’Dalu the god of Abaca, provides them with patterns which they eventually weave. With this intimate connection between their ancestral domains and expressions of their culture, the IPRA was successful in helping indigenous people in preserving their culture.

Despite the indirect benefit of the provision on the IPRA providing for ancestral domains as regards the preservation of indigenous culture, however, only half of the battle is won. Although the indigenous people are now granted a right to their ancestral domains where their culture is tied, it is not sufficient. Indigenous people all over the world, the T’bolis included, now live in a community where basic needs – food, electricity, drinking water, etc. – have to be purchased. As such, unless mechanisms for deriving economic benefit from their culture are put in place, assuming they would want to capitalize on their culture for economic gain, future generations of T’bolis may no longer be interested in learning how to weave T’nalak, relegating this aspect of their culture to history books.

Recognizing that the scope of the IPRA is not sufficient to protect cultural intellectual property of the community a new legislation was proposed. The bill for the protection of Community Intellectual Property Rights Protection (CIPRA) was proposed by Senator Juan Flavier in 1998. As indicated in the explanatory note of the CIPRA, its objective was to provide for a system of community intellectual property rights protection with respect to the innovative contribution of both local and indigenous cultural communities in the matter of development and conservation. The emphasis of the Bill was on the protection of rights relating to biodiversity innovation, however, the Bill does not bring within its purview all elements of traditional knowledge[58]. Under Section 4[59] of the CIPRA, enumerating what can be considered as Community Intellectual Property, cultural products from local communities, such as weaving patterns, pottery, painting, poetry, folklore, music and the like are included. Section 4 of the CIPRA includes a provision as well which accords the same status as community cultural property for those not falling squarely under (a) to (e), Section (f) provides that so long as the product or process was discovered through a community process or the individual making the innovation does not claim ownership.

Another noteworthy provision of the CIPRA is its definition of the term “community”. The CIPRA defined community as, “any group of people living in a geographically defined area with common history and definitive patterns of relationship.”[60] This definition is revolutionary in the sense that by not limiting the definition of community to those individuals belonging to a certain indigenous group, it recognizes the contribution of other individuals with whom the indigenous community interacts. This is consistent with the concept of the fluidity of culture which reflects the interaction of the indigenous cultural community not just with other members of the group but also with their environment and the community as a whole which may include individuals outside the indigenous group. The Bill purports to recognize and protect the contribution not just of indigenous people but also non-indigenous people in the cultural diversities and heritage of the nation. It likewise provides for a system of registration of the community as a tribal council, foundation, co-operative or any other organization that effectively represents the interest of the community.[61] The CIPRA Bill was introduced in 1998 by Senator Juan Flavier. While the intent of the CIPRA bill was indeed laudable, it was forgotten after the end of the term of its proponent, Senator Juan Flavier.

The enactment of the IPRA in 1997 as well as the proposed CIPRA Bill were part of a growing trend seen in the last quarter of the twentieth century which witnessed an unprecedented pace of activities relating to the area of legal protection for folklore.[62] Foremost of these developments is the collaboration between UNESCO and WIPO to address the concerns of developing countries and their fears of perceived threats to their cultural heritage by the improper exploitation of folklore. This partnership resulted in the formulation of a set of guidelines for domestic legislation which pertains to the legal protection of folklore. The provisions in the IPRA including its Implementing Rules and Regulations (IRR), reflect the broad principles[63] contained in the Model Provisions. Certain aspects of the IPRA and the IRR, however, have gone beyond or deviated from the Model Provisions.[64]

In the analysis done by Dr. Valhala Kutty on the provisions of the IPRA and its related rules including the CIPRA Bill then pending, she concluded that the broad principles brought out through the Model Provisions have been substantially incorporated[65] although the structure of the Model Provisions was not followed.[66] Specifically, she concluded that the provisions in the Act, Rules, and the Bill are similar in nature to the requirement in the Model Provisions relating to acknowledgement of source, offenses, civil remedies, authorization and jurisdiction. She also found that the protection provided by the IPRA and the Rules provide for a wider scope.

The conclusion of Dr. Kutty was based on an analysis of the IPRA and its implementing rules as well as the then pending CIPRA bill. An assessment of the legal protection to traditional cultural expressions in the Philippines, however, would fall short of the broad principles in the Model Provisions. More importantly, it would fall short of the declaration of state policy embodied itself on the IPRA, that is, “the State shall take measures, with the participation of the ICCs/IPs concerned, to protect their rights and guarantee respect for their cultural integrity, and to ensure that members of the ICC/IPs benefit on equal footing from the rights and opportunities which national laws and regulations grant to other members of the population.”[67]

Under Section 32 of the IPRA, it is provided that the State shall preserve, protect, and develop the past, present and future manifestations of the culture of ICCs/IPs and under Section 10(a) of the IRR, these manifestations of the culture were enumerated to include archaeological and historical sites, artifacts, designs, ceremonies, technologies and visual and performing arts and literature as well as religious and spiritual properties. The implementing rules further states that the NCIP, in partnership with the ICCs/IPs, shall impose effective mechanisms for protecting the indigenous peoples’ community intellectual property rights along the principle of first impression claim, the Convention on Bio-diversity, the Universal Declaration of Indigenous People’s Rights, and the Universal Declaration of Human Rights. There was no mention, however, of intellectual property conventions like TRIPS or its predecessor GATT or the half a century old Berne Convention. This omission leads one to believe that although designated as cultural intellectual property, the rights conferred to ICCs/IPs under the act is not meant to be covered under existing intellectual property laws. This is a major setback specially because despite provisions on IPRA and the IRR specific to TCEs, the enactment is replete with recourse provisions in cases of infringement.

II. Intellectual Property Laws of the Philippines

T’nalak are woven dreams.

T’boli women weave them, keen eyes and hands working together to judge lengths,

to transfer patterns from memory to loom. T’nalak is made of the whitest abaca fibers connected end to end with the smallest possible knots and dyed red and

blackest brown. Its patterns are handed from mother to daughter,

or bestowed on the weaver in dreams by Fu Dalu, the spirit of the abaca.

Protection of intellectual property in the Philippines is legislated through the enactment of national laws as well as the accession of the Philippines to international organizations like the WTO. Several international conventions lead the Philippines to being a signatory to several agreements relating to intellectual property protection.[69] Pursuant to the country’s ratification of the WTO – TRIPS (Trade Related Aspects of Intellectual Property Rights), the Intellectual Property Code of the Philippines, Republic Act No. 8293, was enacted January 1, 1998 providing for protection of Copyright and Related Rights, Trademarks, Service Marks, and Geographic Indications. The Intellectual Property of Traditional Cultural Expression of weavers straddles both industrial property and copyright.[70] As artworks, the possibility that TCEs may be protected by copyright is looked into. However, the copyright doctrine presents a myriad of barriers precluding full protection of copyright, i.e. the duration of protection, the originality requirement, the fixation requirement, the individual nature of the rights, the fair use exception, and the economic focus of the remedies.[71]

A. Copyright

The importance of copyright laws in the protection of TCEs is apparent and can be seen in several states where the specific legal protection for TCEs as intellectual property is largely embodied in their national copyright legislation.[72] In other countries,[73] TCEs are simply referred to as a form of copyright work and most of the usual rules of copyright apply to them. Other states, in turn, have included in their copyright legislations provisions specifically designed for expressions of folklore. This group includes countries from Africa like Burkina Faso, Ghana, Kenya, Mexico, Mozambique, Namibia, Nigeria, Senegal, Sri Lanka, Togo, and the United Republic of Tanzania, as well as Vietnam in Southeast Asia.

Copyright deals with the rights of intellectual creators in their creations. Although protection is granted to these creators, the protection of copyright extends only to the form of expression and tangible manifestations of these ideas, and not to the ideas by themselves. The owner of rights in artistic works is protected by copyright law against those who “copy”, that is to say those who take and use the form in which original work was expressed by the author.[74] Copyright protection is, above all, one of the means of promoting, enriching, disseminating the national cultural heritage. The development of a country depends, to a very great extent, on the creativity of its people. Encouragement of individual creativity and its dissemination is a sine qua non for progress. It is on this aspect that copyright constitutes an essential element in the development process. Experience shows a positive direct relationship between the enrichment of the national cultural heritage and the level of protection afforded to literary and artistic works. This is shown by the fact that in the final analysis encouragement of intellectual creation is one of the basic prerequisites of all social, economic, and cultural development.[75]

The Philippine copyright law was derived from Anglo-American jurisdictions. As such, originality[76] in the work protected is necessary. To qualify for copyright protection, however, it is not necessary that such product has never existed prior. It is only necessary that it evidences the individual skill and labor of the author to satisfy the requirement of originality under copyright laws. Thus, if the work is based on a preexisting work, a substantial – not merely trivial – variation is necessary. Both requirement of innovation and originality is problematic for the output of indigenous weavers in the Philippines. Since the weaving designs as well as the process for the production thereof is passed on by their ancestors the requirement of both originality and innovation does not exist. Moreover, as heritage passed on from generation to generation, derivation, not deviation, from prior works is the rule. This is specially true due to the sacred and educational nature of such works.

TCEs, like the T’nalak weavings of the T’boli women, are often incapable of being protected under existing intellectual property laws.[77] What was passed on from generation to generation by T’boli women – through their own dreams, their mothers, and their ancestors – remains unprotected in an intellectual property regime which came much later, but which these TCEs must now conform in order to be able to gain the benefits of the system of protection conferred to intellectual property holders.[78] As creators and artists the T’boli dreamweavers, have varied reasons in seeking the protection of their traditional knowledge which includes protection against commercial exploitation, attribution and benefit sharing. TCEs of indigenous people are not merely artworks, TCEs also embody their culture and way of living. The indigenous group’s interest likewise involve ensuring the continuity of their culture. This can clearly be seen from the fact that unlike other ICCs/IPs who only wear their traditional clothes during special occasions or when there are festivities, the T’boli’s wear their traditional costumes, or at least parts of it, almost everyday.

In their article Farley[79] and Carpenter[80] suggested that Intellectual Property provisions, specifically that of copyright, be extended to cover the works of indigenous artists. The possibility of this group being protected under current copyright laws as suggested by Farley has also been espoused by WIPO. According to WIPO, the national cultural heritage of developing countries can be protected within the framework of copyright legislation, through protection of the rights of these auxiliaries or of related (or neighboring) rights. Farley and Carpenter’s proposal and recommendations are meant to overcome the provisions and effects of copyright law which precludes TCEs from enjoying its protection, to wit: the duration of the rights, the originality requirement, the fixation requirement, group rights, and fair use. The main thesis proposed by Carpenter revolves around the proposition that since Intellectual Property is, and have become, a formidable tool in the protection of artistic works and expressions, to deny this protection to indigenous people and their TCEs would be tantamount to denying them a right to vindicate any injury that was done to them.

According to Carpenter, while it is true that intellectual property laws are based on western developed markets, as well as western concepts of creation, invention, and ownership. Nonetheless, these laws are currently the primary vehicle for the protection of artistic, literary, and scientific works worldwide. Thus, she proposed, to segregate indigenous interests from this international regime would amount to denying them both a powerful shield and a powerful legal sword.[81] She proposes a reconstruction of the machinery that is intellectual property law in order for it to work for all cultures. Carpenter argues that copyright laws can and must be expanded so as to maintain the vitality of, and protect, the creative artistic and literary works of indigenous cultures. In expanding these, the article proposes three main changes to copyright laws: incorporation of collective and communal notions of authorship, the expansion of the originality requirement to reflect these forms of authorship, and lastly the application of limits on the duration of copyright protection in a broader community context.

In her paper, Carpenter proposes that the means wherein the notion of authorship in copyright may be expanded is already existing within the copyright system. These mechanisms are the concept of joint authorship, transfer of rights, and works for hire. Of these concepts, Carpenter theorizes, the notion of joint authorship has the most logical possibility. Currently, however, as Carpenter admits it is practically impossible for indigenous people to meet the high threshold for joint authorship. Under current copyright laws, certain requisites must be fulfilled in order to qualify as jointly authored, these are: (1) collaboration in fact in the preparation; (2) intention of the authors, at the time of preparation, to have their contributions merged into inseparable or interdependent parts of a unitary whole and (3) each person’s contribution is itself copyrightable. As regards using the notion of works for hire made for hire and transfer of rights, these concepts would necessarily require that the community regards its relationship with the members as that of employment, and in the latter case for the members to assign or transfer their rights to the community who acts as a corporate entity. The basis of Carpenter’s proposal and the necessary changes that the indigenous community has to go through imposes a high cost for the culture and structure of the indigenous people that in the end such proposal might actually change and destroy the very basis of the cultural expression that we seek to protect.

The second proposal put forth by Carpenter to protect indigenous cultural expressions is modifying the originality requirement. Carpenter’s theory in scaling this originality roadblock hinges on her prior proposal of changing the notions of authorship. That is, if the notion of authorship itself is expanded, then by extension we will no longer be relying upon the originality of one single creator but rather that of the community. As such, since the work is originally produced by the community itself then it should satisfy the litmus test of originality for copyright purposes.[82] The author finds this proposal problematic, since although the community is itself considered an author, assuming that authorship including joint authorship requirement is modified, the reckoning period or delineation of originality would inevitably be traced from the time the first assignment of ownership or ‘contract of employment’ is had. Since this first assignment or contract would have transpired years ago, thus the subsequent reproduction of the first work would no longer be protected. Since the concern would be protecting the indigenous people and their TCEs and indigenous craft produced today, the result of this proposal would not only amount to such craft being ‘unoriginal’ but also open these crafts to possible exploitation or infringement since they are not original nor covered by copyright to begin with. To address this issue of the limited period of protection for copyright works, Carpenter finds inspiration from the United States legislation on trademark which gives protection to trademarks for so long as they are in use.

Under copyright laws, the owner of copyright in a work is generally vested in the person who created the work i.e. the author of the work.[83] In the case of the dreamweavers whose designs were handed down from generation to generation, the idea of ascribing it to one author is problematic. Does one ascribe it to the ancestor who originally thought, or more properly, dreamt of the pattern? Or should it belong to the current weaver who produced the T’nalak with the pattern that she learned and was handed to her by her ancestors or teacher? If we subscribe to the former, then naturally most patterns currently used by weavers would already be in the public domain and thus capable of appropriation by pretty much everyone – from wholesale manufacturers abroad to local entrepreneurs. It is worth noting that although publications regarding the Dreamweavers would say that a certain weaver knows more than a hundred designs of T’nalak, the weaver herself would tell you that of those she dreams only a few with most of the designs being passed to her by her mother, grandmother and great, great grandmothers.

One major difference between the concept of authorship between the indigenous people and traditional western conceptions is the fact that in indigenous cultures the authorship does not pertain to one single author but to the community, clan or family. Hence, for TCEs, although the weaver might have the biggest investment in terms of time and effort, the intellectual creation is not attributable to one single individual, but to the community or family which participates in its creation. The T’nalak, for example, would not achieve the same vibrancy of colors if not for the effort of the person who prepared the dye and boiled the abaca with it for about 3 weeks nor would the T’nalak have its remarkable sheen and softness if not for the skill of the person who burnishes it with the cowrie shell and beeswax. These steps are essential to the production of the art, which is the T’nalak in this case, and to disregard the contribution of these individuals and solely ascribe authorship to the weaver would not only be unfair to other individuals but would also run counter to the concept and idea of ownership by the weaver herself.

Related to the problem of authorship is the originality requirement necessary before a work can be held eligible for copyright protection. As a creation that is as much a tradition as it is an artwork for the T’bolis, the requisite of originality necessary for copyright protection is lacking. Moreover, as unschooled creators of this art, the right of the T’bolis to the copyright of the T’nalak is even endangered by the originality requirement, as codified under the Copyright laws. Under Copyright laws, ideas in the work do not need to be new but the form, whether artistic or literary, wherein the idea is expressed must be an original creation of the author.[84] In this case, since majority of the patterns of the T’nalak which are currently existing are largely undocumented,[85] copyright might actually pertain to the person who documents and/or publishes the patterns. Although, as a general rule, ownership of a copyright is vested in the author of the work, this provision is subject to national legislation. Thus, to remedy this concern a sui generis law protecting the Indigenous People’s intellectual property is incumbent.

Another criticism advanced against the impracticability of employing copyright alone for the protection of TCEs is the relatively high cost associated with it. Copyright registration applies only to the nation where it is registered.[86] Since the lucrative market for indigenous crafts often lay in export markets,[87] the protection afforded by copyright, which is localized to the domestic market, would be rendered virtually useless. The solution would be, of course, to extend this protection outside the Philippines. This is a lot easier said, or written, than done. To do this, one must apply in each country wherein protection is sought. In case a prior registration is already made in that country, to obtain this protection, a successful challenge on the ground of prior use or prior registration must be made. The effect of this localized protection afforded by copyright is demonstrated by the case of the Peruvian artisans who were unable to fulfill contracts with importers for a number of years, and whose jewelry designs were even confiscated in trade fairs. In this case, European designers toured the Andean craft communities, they subsequently used some of the designs originally by the Peruvian craftsmen. Thereafter, these designs were registered by foreign designers preventing the indigenous artisans from marketing their own creations in countries where the designers registered them.[88] Consistent with the premise that Intellectual Property rights reside in the individual, copyright protection – including infringement prosecutions and actions – is also the responsibility of the artisan. Thus, if a counterfeit product is being marketed within the jurisdiction covered by the copyright holders protection, it is up to the artisan to bring this to the attention of the proper authorities. Most dreamweavers do not know how to read or write.[89] Aside from the fact that their personal circumstances and their inability to comprehend the nuances of copyright law, prosecuting copyright claims can also prove to be both overwhelming and expensive.

To address this issue of localised protection, countries enter into multilateral treaties. The most comprehensive multilateral agreement, at least to date, is the TRIPS Agreement which came into effect on 1 January 1995. Under the TRIPS agreement, minimum standards of protection to be afforded by each member state are set. These standards pertain to the subject matter to be protected, the rights to be conferred and permissible exceptions to those rights, and the minimum duration of protection.[90] In terms of protection, possibly the most important provision in the TRIPS agreement is that which obligates a membercountry to accord the same treatment it provides to its nationals to those of other member countries. Moreover, as a member country of the World Trade Organization (WTO), enforcement of claims through the Dispute Settlement Unit (DSU) may also be achieved with the state bringing the claim in behalf of the aggrieved party. This remedy is specially useful in the case of the indigenous people who might not have the capacity to prosecute their claims. The problem with regard to prosecution of infringement claims is also, partly, remedied by the provision in the TRIPS agreement which gives registrants in member countries who made an earlier registration of a mark or creation a presumption of ownership.[91] This, however, may also cause prejudice to the indigenous people should no assistance be provided to them for effecting registration as may be seen in the case of the Peruvian artisans.

As aptly put by Farley, although copyright law may be a logical choice and best suited in protecting indigenous folklore, the question is whether copyright law is capable of accommodating this art form. More importantly, it must be asked whether the needs of the community are satisfactorily addressed. She concludes that the copyright doctrine presents a myriad of barriers to the full protection of indigenous art and folklore, thus Farley proposes looking beyond copyright law and coupling the current provisions of copyright with other rights. Specifically, she proposes that provisions governing moral rights, public domain statutes and domaine public payant, laws dealing with unfair competition, and trade secrets be used.[92]

One of the first limitations under copyright is the duration of the protection. According to Farley, assuming that the practical concerns of finding a ‘person’ or ‘author’ whose lifetime shall be the basis of the protection is addressed, a more paramount concern is the fact that the term of ‘lifetime of the author plus fifty years’ protection under the Berne Convention – subsequently adopted in the TRIPS agreement and in the Philippines Intellectual Property Law – is simply not sufficient. This period is too insignificant in the life of artistic traditions passed from generation to generation that date hundreds, or even thousands of years. Moreover, for the pragmatic group, a more pressing concern would be the fact that since these TCEs and other artworks have already appeared in publications or writings years prior, with or without their consent, these might already be considered as part of the public domain. To resolve this concern, Farley proposes that copyright law be reformulated making the protection retroactive and perpetual.[93]

The remedy proposed by Farley, however, poses problems as well as solutions. The problem with granting TCEs perpetual protection as well as making it retroactive loses sight of the fact that TCEs are not similar to other creations of art. As a manifestation of culture, TCEs likewise evolve. Especially for the pragmatic group who would like to capitalize from their traditional art and craft as well as the techniques they learned in producing such, this protection might create more harm. That is, by protecting TCEs as static creations, this might preclude innovation, whether to address the market needs or just to make the production more efficient, which in turn hampers progress on the part of the indigenous group. One case in point was one order from a buyer abroad for the T’bolis to do flower patterned T’nalak, although they were not able to do the said pattern, theoretically if they were able to do that would that still, for example, be called T’nalak or would that be tantamount to a violation of the intellectual property rights protecting it. Another hypothetical case, for example, would be a request for the T’bolis to use only two colors[94], instead of the usual black, white, and red, to make the T’nalak following all the patterns and process, would that then amount to infringement of copyright. Although this “freezing” of the process and creation of TCEs would be favored by what Carpenter refers to as the “traditional group” this would be prejudicial to the pragmatic group. These issues would inevitably arise due to the fluid nature of TCEs – they change and grow with the people who made them. This situation has in fact already happened when a local designer used T’nalak for his bags but instead of using the traditional patterns and colors of T’nalak ‘ordered’ that the cloth be composed of only two colors.

When all else fails and when the possibility of giving a status quo ante order is no longer feasible, the usual remedy proposed is damages. Although a provision for damages is provided under Copyright laws, more often than not this provides an inadequate remedy. As suggested by Farley, unless a provision for surrender of profits is added to the provision on injunctive relief and destruction of the infringing goods these penalties are not sufficient and would be ineffective to deter infringers from engaging in the “business” of selling and producing purportedly indigenous works. This suggestion, although ideal, loses sight of the fact that most infringement does not happen through legitimate channels but rather through black markets, thus, a sufficient gauge of profits is not available. Hence, this suggestion might not be practicable. Also, since unrealized profits are not included on the computation for damages, the indigenous people can only look to provisions under the law on moral and exemplary damages in order to seek reparation for whatever injury the act of infringement has caused them.

Although it is worth noting that countries such as Australia, recognized as a frontrunner in asserting the rights of indigenous people, has considered aboriginal customary law in the assessment of damages, this jurisdiction still does not recognize communal title under the Copyright Act. Under the Australian Copyright Act while protection for illicit copying of works owned by individual authors is provided, under the said law neither a remedy for the unauthorized copying of works through communal ownership nor communal harm is provided. In the case of Yumbulul[95], the Court explicitly held that the Copyright Act did not “provide adequate recognition of Aboriginal community claims to regulate the reproduction and use of works which are essentially communal in origin.” Reading from the decision, it appears that not only does communal ownership preclude the operation of copyright, but precisely because there is communal ownership, this makes the subject work not copyrightable. Finally, although the use of copyright in protecting TCEs may be fraught with difficulties, its use should not be ignored in developing a sui generis system of protection.

B. Trademarks

Trademarks, unlike copyright, have existed since ancient times. Evidence for this traces back more than 3,000 years when Indian craftsmen would engrave their signature on their artistic creations prior to sending them to Iran. Fast forward to the current world of globalization and market-oriented economies, trademarks assume a more important role[96] in differentiating the various goods that fall within the same category. The means employed in differentiating goods which have no apparent differences for the consumer involved naming them. This naming mechanism eventually evolved to trademark.

A trademark is any sign that individualizes the goods of a given enterprise and distinguishes them from the goods of its competitors.[97] It may either be a word, phrase, symbol or design, or a combination thereof, identifying and distinguishing the source of goods of one individual or group from those of others.[98] This definition is composed of two aspects, sometimes referred to as the different functions of the trademark, but which are independent of each other but for practical purposes should always be looked at together.[99] The first is the source indicator and the second would be the differentiating factor. Both these functions are meant to “individualize” a product for the consumer. Although separate, the source indicating function presupposes that the trademark distinguishes the goods of a given enterprise from those of other enterprises. Both these aspects serve the traditional legal function of a trademark which is to indicate the source or origin of the goods on which it is used. Aside from this source-indicating function, trademarks also serve as a guarantee that the product attached to it is of a certain standard of quality.[100]

Although the duration of trademark protection is relatively shorter than copyright protection, unlike copyright, trademark registration is renewable and thus can continue until perpetuity or at least so long as it is still used by the original holder or ceded to a new holder. Therefore, the previous proposal put forth by Carpenter that the protection be made perpetual can be accomplished by this provision for allowing the trademark owner to renew his claim for the mark. This would mean however, that a registration must first be made and such mark must conform to the above requirements for a valid trademark. This provision of prior registration is admittedly a downside from that of copyright which begins at the moment of creation. Although the requirements of trademark might prove burdensome for the indigenous people, the provisions of copyright are still worth noting specially in the formulation of a sui generis system for the protection of TCEs. The burden of registration, however, should not be taken as an insurmountable roadblock to altogether dismiss what benefit trademark laws can provide for the indigenous people.

One provision in trademark laws that holds promise[101] for the protection of indigenous crafts is the provision on collective and certification marks. A collective mark is defined under the Intellectual Property Code[102] as “any visible sign which is designated as such in the application for registration and capable of distinguishing the origin or any other common characteristic, including quality of goods or services of different enterprises which use the sign under the control of the registered owner of the collective mark.” Collective marks are similar to regular trademarks and service marks since they all indicate the commercial origin of goods or services. Their difference lies in the fact that collective marks indicate origin in members of a group as opposed to a single origin for the goods bearing the trademark.[103] Since the mark is used by all members of the group, no one member can own the mark and the organization holds the title for the collectively-used mark for the benefit of all members of the group. Some countries, Panama for example, utilize collective marks for registered elements of traditional knowledge that may be shared or owned by the communities. Unlike copyright which pertains only to an individual, collective marks are owned by an association. Products from its members are expected to have a certain level of quality, or adhere to a specific set of requirements set forth by the association.[104]

One advantage in using trademarks, specifically collective marks, over copyright, is that protection may be acquired for international markets as well. The Paris Convention contains provisions on collective marks under article 7 bis. Under the said provision, collective marks are to be admitted for registration and protection in countries other than the country where the association owning the collective mark is established.This means that although the association has not been established in accordance with the law of the country where protection is sought, this fact does not constitute as a valid ground for refusing such protection. An exception provided under the said Convention for refusing protection and allowing the country therefore to apply its own conditions of protection would be public interest.

Applying this to the case of the T’bolis, a problem in using collective marks in order to delineate between those products coming exclusively from Lake Sebu, South Cotabato and produced by the T’bolis would be the inherent restriction in the trademark provisions under the Intellectual Property Code. That is, Section 123.1 (j) precludes the registration of a mark that “consists exclusively of signs or of indications that may serve in trade to designate the geographical origin of the goods or services. While under the provisions of the IP Code these marks may be registrable matter, such registration carries with it a disclaimer that they cannot be exclusively appropriated. It may be argued that this problem of delineating products from Lake Sebu from other products not coming from this area may be solved by the use of Geographic Indicators (GIs). The use of GIs, however, carries with it an important condition: the characteristics of the product must be attributable exclusively to a particular geographic location.[105] The T’nalak is a product of the T’bolis’ ingenuity and craft passed on from generation to generation of T’boli women. Though inspired by nature, it is not essentially attributable to its geographic origin, Lake Sebu.

Related to GIs but without the restriction that the goods covered must be distinct to the region are National Certification Trademarks. This Certification mark or “label of authenticity” is intended to help promote the marketing of the indigenous people’s art and cultural products as well as deter the sale of products which falsely claim to be made by indigenous people. National Certification Trademarks, for example, were used by the Aboriginal and Torres Strait Islanders of Australia.[106] This label was developed by the National Indigenous Arts Advocacy Association (NIAAA) in 1999.[107] The use of these “authentication marks” was seen to be effective in maintaining the culture and integrity of Aboriginal and Torres Strait Islander art, ensuring a fair and equitable return to the community, maximizing consumers’ certainty as to the authenticity, maximizing the multiplicity and diversity of indigenous art, and promoting the understanding, both nationally and internationally, of their cultural heritage and art.[108] Using this as a means to protect indigenous artists in the Philippines is promising and the task may be undertaken by the National Commission on Indigenous People (NCIP) which is created under the IPRA.

The renewable nature of trademarks and its possibility to extend the lifetime of the trademark indefinitely, as well as the possibility of collective ownership of such rights suggest that they may be suitable in protecting traditional knowledge. The same holds true for national certification marks or “labels of authenticity”. The challenge therefore is to enact a legislation creating an “authenticity label” for the T’nalak, and other TCEs, which would be registered as a trademark, as well as providing guidelines for its use, management and enforcement, similar to what Australia did for the Aboriginal and Torres Strait Islanders.

C. Moral Rights

The term moral rights originated under civil law and is a translation of the French le droit moral, a word which is meant to capture those rights of a spiritual, non-economic and personal in nature. These rights are based on the belief that during the process of creation, the artist injects his spirit into the work and that the artist’s personality and integrity should thus be protected and preserved[109]. In the case of TCEs like the T’nalak, it is easy to see how during the almost four-month process of producing the T’nalak the weaver inevitably “injects her spirit” into it.

Moral rights consist, basically, of the following rights – rights of divulgation, paternity and integrity. They are usually inalienable and these rights allow artists to protect their artworks from denigration. Section 193 of the Intellectual Property Code provides that an author of a work shall independently of economic rights[110] or the grant of such right, is granted moral rights. The scope of such rights include the right of attribution,[111] the right to make any alteration of his work prior to, or to withhold it from publication,[112] the right to object to any distortion, mutilation, or other modification, or other derogatory action to his work which is prejudicial to his honor or reputation,[113] and the right to restrain the use of his name with respect to any work not of his own creation or in a distorted version of his work.[114] This distinction under Section 193 gives the author the right to enjoy moral rights although he has already licensed or assigned his economic rights. Under Section 201, however, moral rights shall not apply to prints, etchings, engravings, works of applied art, or works of similar kind wherein the creator primarily derives gain from the proceeds of reproduction. Based on this definition, T’nalak may fall under ‘works of applied art’, thus the question of whether or not it is covered by moral rights in the first place is brought to fore.

The protection that may be obtained under moral rights is for a finite number of years which is calculated at fifty years after the lifetime of the artist or author. After the death of the holder, the right cannot be assignable or subject to license since it is considered as a personal right which accrues only to the artist. As a right tied to the lifetime of the creator of the work, for the T’nalak whose original creators would be the ancestors of the current dreamweavers, it is debatable whether the current weaves are still covered by moral rights.

The artworks of indigenous people may be protected under this doctrine from preventing publication and reproduction without their consent, published without attributing the work properly or attributing it to them in a publication in poor quality, partial reproduction which distorts the message, or utilized in such a way that is inappropriate – according to their customs and traditions – to the nature of the original work.[115] One of the criticisms with using the doctrine of moral rights, however, is that it is directed not to collective ownership but to the individual. The possible solution for this would be to have each weaver execute a waiver of rights – moral and economic — in favor of the indigenous group. However, this situation and the assignment of such rights to a juridical person or group would be problematic in seeking redress. In the Philippine jurisdiction where moral harm, including moral damages, may be awarded only to an individual person[116] and not to juridical entities, this would render useless the recovery of moral rights as a relief to the indigenous group concerned. Thus, in the end the only measure of damages due would be the economic right, rendering the provisions on moral rights nugatory.

D. Public Domain and Domaine Public Payant

Although the doctrine of public domain may not be relevant to indigenous people whose primary concern is to derive economic benefit and livelihood from their TCEs through their handicrafts, the doctrine of public domain might be relevant in seeking protection, specifically the doctrine of domaine public payant.

A domaine public payant literally means ‘paying public domaine’, which is generally understood as a legislative scheme that imposes a fee of works in the public domain when a specific identifiable author is lacking. Usually, funds raised under this scheme goes to support organizations and could, in the case of the indigenous people, be directed towards organizations which benefit the community directly. The idea of using a system of domaine public payant to protect copyright issues had been explored by the WIPO and UNESCO in the past.[117] Under this mechanism, when there is no identifiable author (which is usually the case for TCEs), one who desires to use the subject TCE must pay a royalty to the state. An example of a legislation that employs this mechanism is the African copyright legislation. Under this legislation, folklore is considered part of the national heritage and protected as such without regard to whether or not they qualify for copyright protection.[118]

E. Unfair Competition Laws

Unfair competition laws are employed in prohibiting and challenging the sale of fake copies of goods. As such, they are looked into as a possible source of protection for TCEs. In her paper, Farley concluded that for the indigenous community concerned only in economic benefit sharing, granting special protection to them would be better achieved through unfair competition laws.

Section 168 of the Intellectual Property Code of the Philippines governs unfair competition, rights, regulation and remedies. Under the said provision, Section 168.1, a person who has identified in the mind of the public the goods he manufactures or deals in, his business or services from those of others, whether or not it is registered, has a property right in the goodwill of the said goods, business or services so identified, which will be protected in the same manner as other property rights. Persons who shall employ deception or any other means contrary to good faith by which he shall pass off the goods manufactured by him or in which he deals, or his business, or services, for those of the one having established such goodwill, or who shall commit any such acts are also guilty of unfair competition. Subsection 3 of the same article provides an enumeration, though not exhaustive, of who shall be deemed guilty of unfair competition.[119] Unfair competition has two essential elements; first, that the person complained of shall have given his goods the general appearance of the goods of the complaining party; and second, that the person complained of should have clothed the goods with such appearance for the purpose of deceiving the public and defrauding the complaining party of his legitimate trade.[120] Penalties for persons found guilty of unfair competition include cancellation of their registration, destruction of the subject goods, damages, and in some cases imprisonment.

The term “unfair competition” presupposes competition of some kind. This doctrine is usually invoked when there is an actual market competition between the analogous products, that is, there can never be unfair competition unless there is something to compete with. However, the Courts tend to decide in favor of widening the scope of unfair competition. Although unfair competition is said to be broader than trademark infringement, there are cases wherein trademark infringement will not necessarily amount to unfair competition. When the infringer discloses on the labels containing the mark that he manufactures the goods, this would not amount to unfair competition since the public is not being deceived that the goods originate from the trademark’s owner.[121] As such, the current trend is for the Courts to rule on unfair competition although no direct competition exists, thus extending the doctrine of unfair competition to all cases in which one party fraudulently seeks to sell his goods as those of another.[122] Broadly, any conduct that has the end and probably effect of deceiving the public or pass off the goods or business of one person as and for that of another constitutes an actionable case for unfair competition. By definition, therefore, unfair competition is a legal wrong for which the courts afford a remedy, it is not fraud but is categorized, instead, as tort.[123]

Thus, all that an infringer or someone who desires to manufacture goods similar to the T’nalak has to do, is to actually disclose its origin. Clearly, as opposed to the claim of Farley, this is not sufficient protection for the Indigenous People – whether realist or traditionalist. All that infringer needs to do is to label it “made in X” and the act might no longer be regarded as infringement. The mere availability of a craft similar to the T’nalak but not originating from the T’bolis destroys the distribution and pricing model, which ideally should reflect the amount of labor required to produce it. This forces the indigenous people to sell their craft at ridiculously cheap prices in order to compete with the crafts produced using non-traditional methods, often manufactured with sophisticated machinery in foreign countries with no affinity to the product being produced. What took the T’bolis approximately four months to produce usually ends up being sold at prices garnering no more than a subsistence income for the craftsmen and their families.

F. Extending Customary Law to Third Persons

One of the criticisms in applying customary law to govern Traditional Cultural Expressions is the fact that such customary law sanctions would often make sense and would be enforceable only to members of the indigenous community. Since infringement is usually conducted by a person not a member of the community, customary law would not have ‘teeth’ to punish violators. The customary laws of a particular indigenous community and the sanctions provided therein is effective in controlling members of the indigenous community due to the moral ascendancy of the clan or tribe leader who is perceived to descend from their original ancestors[124] as well as the intricate social structure in the group which governs accountability among its members.[125] Without these structures, customary law would have no effect. Thus, it is not hard to see why the relevant customary law and norms would have no application, and might even appear ridiculous to outsiders who are alien to these social structures, rules and tradition.

This is not to say that customary law would be totally ignored just because the alleged infringer is alien to the customary norms of the indigenous group. Customary law may still be used in the assessment of damages due to the indigenous people whose rights were violated. In Australia, in the case of Bulun Bulun & Anor v. R & T Textiles Ltd.[126] the customary law of the Ganalbinga people surrounding the use of the painting “Magpie Geese and Water Lilies at the Waterhole”,[127] the Court said that evidence of customary law may be used as a basis for the foundation of rights recognized within the Australian legal system. Justice Von Douss stated in his opinion that, “The conclusion that under the circumstances Mr. Bulun Bulun owes fiduciary obligations to the Ganalbinga people does not treat the law and custom of the Ganalbinga people as part of the factual matrix which characterizes the relationship as one of mutual trust and confidence. It is the relationship which the Australian legal system recognizes as giving rise to the fiduciary relationship, and to the obligations that arise out of it.”[128]

Unlike the Australian legal system, however, the recognition of customary laws is embodied in the IPRA. Under the IPRA, customary laws of the indigenous people must be taken in consideration in determining transfer of rights as well as assessing whether there was a free and prior informed consent obtained from the indigenous community concerned.

III. Human Rights

It is a task that will take a few weeks at least.

Counting, sorting,tying, all processes repeated over and over, the entire length of the loom.

Finally the weaver sits, straps herself in, shifts her feet to find the exact point of tension,

and begins to weave.

The weeks spent in preparation pay off.

The warp fibers are in place to receive the weft threads, the ones that will go across the vertical warp to make the cloth. It is built slowly, thread by thread, each inch taking its strain on the back, the shoulders, the legs that must stay in position to provide the tension.

The intersection of Intellectual Property and Human Rights often arise in the case of indigenous people and globalization, and the increasing commodification of content.[130] This debate on human rights has its origins on the argument that since current intellectual property laws do not protect Traditional Knowledge and TCEs, discrimination exists which is abhorrent to the tenets of human rights.

What took four months and at least four people collaborating together to produce would eventually be sold at prices ranging from Php300 to Php500.[131] Considering it takes an apprentice over four years to learn the craft of T’nalak weaving – the same period it takes to finish a college degree in the Philippines – becoming a skilled weaver is a substantial investment. Added to that, since the T’boli have no direct access to the market, the weavers are frequently forced to offer their crafts through consignment at various souvenir shops and resorts dotted around Lake Sebu. Selling through consignment means money is only earned once their produce has been sold to a wondering tourist or foreign merchant. In other words, producing a T’nalak carries substantial risks for both the weaver and their families. Money spent fabricating the T’nalak instead of basic necessities may only be recouped after a substantial period of time has passed.[132]

The potential of crafts in terms of employment generation and poverty alleviation in areas inhabited by indigenous communities is tremendous. For most T’bolis, the practice of their craft, from weaving to brass casting, embroidery and beads making, remains a major source of income. These crafts are sold on their behalf through COWHED (Cooperative of Women in Health and Development).[133] To date, COWHED has a total of 187 members. COWHED, small as it may seem, remains one of the major links of T’bolis to market their craft.[134] T’boli weavers, with very few exceptions,[135] usually market their craft through cooperatives like COWHED, middlemen, or through stores selling native crafts. Selling their crafts is one of the initial challenges, the other would be selling it for a price that would at least let them live a comfortable life. Like many other indigenous artisans, this price is ironically not high. Probably the most well-to-do weaver would be the Gawad ng Manlilikha awardee Lang Dulay. She is already more than 90 years old, and has been weaving since she was 12. Despite the more than 100 designs credited to her name, and having been flown to as far as Hawaii, her economic situation has remained largely unaltered. She continues to live in a thatched roof house, half of what probably is not more than 30 square meters is dedicated to weaving, decorated with photos featuring Lang Dulay with other weavers, as well as former President Ramos. At the other end or her modest house hangs a tarpaulin lauding Lang Dulay as a National Artist.

It is perhaps due to the often sad plight of indigenous artisans that advocates of indigenous rights have looked into the provisions of human rights laws in order to gain the protection of laws. Human rights laws although it may be related to intellectual property laws provide a wider scope of protection. Under the 1948 Universal Declaration of Human Rights,[136] the International Covenant on Economic, Social and Cultural Rights,[137] and the International Covenant on Civil and Political Rights[138] guarantee the fundamental rights pertaining to, inter alia, labor, culture, privacy, and property. In the discussion by Yamin and Posey,[139] they proposed that the Universal Declaration and the International Covenants may be used to argue that the failure to grant equal intellectual property rights to indigenous people is tantamount to discrimination. In this regard, they may be used to protect the cultural property interests of the indigenous community.

The concept of moral and material interests resulting from any scientific, literary, and or artistic production is provided under the Universal Declaration of Human Rights.[140] The right to own collective property and not to be deprived of that property is also provided in the Declaration.[141] The right to just and favorable remuneration of work[142] and equal protection for all under the law[143] are also provided. However, as pointed out by Posey,[144] the utility of human rights provisions is limited due to the fact that they are directed toward state governments and establish no clear basis for its application to transnational corporations and to individuals engaged in unauthorized use of folklore. Even if they are directed toward state governments, human rights provisions may be used to advocate a sui generis legislation capable of protecting TCEs.

The intersection of human rights and intellectual property law is demonstrated in the case of United States v. Carrow.[145] In this case, Carrow was prosecuted under a legislation which punishes trafficking of cultural patrimony.[146] He is questioning the said legislation on the basis that it was void for vagueness, and the Federal Court held that the subject legislation was a human rights legislation, and thus rejected his defense.

IV. Protection In The International Level

T’nalak patterns engulf in their complexity and mathematical precision,

The era for the recognition of TCEs and indigenous people’s rights in the international community was ushered in 1967 through an amendment to the Berne Convention for the Protection of Literary and Artistic Works (Berne Convention). The amendment provides for a mechanism for the international protection of unpublished and anonymous works. The aim of this amendment, now reflected under Art 15.4[148] of the Convention, was to provide international protection for expressions of folklore/TCEs.[149] This effort, however, was not to protect folklore under a sui generis system of protection but merely to provide a way to introduce copyright protection for folklore at the international level.

The second of these developments is the 1976 Tunis Model Law on Copyright for Developing Countries. The Tunis Model Law was in response to the revisions made in 1971 to the Berne Convention and the Universal Copyright Convention. That is, the concern then was that, if a State is to adhere to the Convention rules, it was therefore deemed appropriate to provide States with a text of a model law which, if the State so desired, they could take as a pattern when framing or making amendments or revisions to their domestic legislation. The most notable development introduced by the Tunis Model Law is the provision exempting works of indigenous groups from the fixation requirement.[150]

The path to a sui generis protection which was commenced with the enactment of the Tunis Model Law was followed by the 1982 WIPO-UNESCO Model Provisions. These provisions were a product of the expert group convened by WIPO and UNESCO tasked to develop a sui generis model for the IP-type protection of TCEs. The Model Provisions established two main categories of acts against which the TCEs are protected, namely, ‘illicit exploitation’ and ‘other prejudicial actions.’ Two years after the Model Provisions was drafted, WIPO and UNESCO jointly convened a group of experts on the international protection of expressions of folklore by Intellectual Property. With a draft treaty at their disposal, based on the 1982 Model Provisions, WIPO and UNESCO worked for an international treaty. However, majority of participants at that time believed it was too still premature to establish an international agreement.[151]

The goal of establishing an international treaty was partly realized when in December 1996, WIPO Member States[152] adopted the WIPO Performances and Phonograms Treaty (WPPT) which provides protection for the performer of an expression of folklore. For two years, between 1998 and 1999, WIPO conducted Fact Finding Missions (FFMs) in 28 countries to identify the IP-related needs and expectations of traditional knowledge holders. In 1999, consultations were also organized by WIPO on the protection of expressions of folklore. These consultations were conducted for African countries (March 1999), for countries in the Asia and Pacific Region (April 1999) and for Latin America and Caribbean (June 1999). Resolutions and recommendations were reached in these consultations, and one of these was that WIPO and UNESCO increase and intensify their work in the field of folklore-protection. Moreover, the recommendations were unanimous in one regard: future work in these areas should include the development of an effective international regime for the expressions of folklore. To date, no agreement has been reached to establish an international convention or regime for the protection of folklore.

A. TRIPS Agreement

The TRIPS agreement is probably the most successful International Agreement in Intellectual Property with its membership composed of the member states of the World Trade Organization (WTO). The agreement, in a way, standardized the definition of Intellectual Property. The agreement codified what is now known as the common characteristics of intellectual property, that is, the presence of an identifiable author/s or inventor/s, an identifiable work or invention or other object, and defined restricted acts in relation to the said object which are done without the authorization of the rights-holders.

Although the development of the issue of Traditional Knowledge started in 1998 at the WIPO, the World Trade Organization followed suit almost immediately in 1999 when the General Council began preparing for the Seattle Ministerial Conference.[153] On August 6, 1999, two important documents were submitted to the General Council. One of these was the proposal coming from the Permanent Mission of Venezuela who proposed that in the next review of the TRIPS, inter alia, they should “Establish on a mandatory basis within the TRIPS Agreement a system for the protection of intellectual property, with an ethical and economic content, applicable to the traditional knowledge of local and indigenous communities together with recognition of the need to define the rights of collective holders.”[154]

Aside from this proposal from Venezuela, other developing countries likewise made proposals for a legal framework on Traditional Knowledge. On October 12, 1999, a more detailed proposal was submitted by the governments of Bolivia, Columbia, Ecuador, Nicaragua and Peru to the General Council.[155] This document proposed that the WTO should establish a mandate in a future trade round on the following: (1) to carry out studies, in collaboration with other relevant international organizations, in order to make recommendations on the most appropriate means of recognizing and protecting traditional knowledge as a subject matter of intellectual property rights, (2) on the basis of the prior recommendation, initiate negotiations with a view to establishing a multilateral legal framework that will grant effective protection to the expressions and manifestations of traditional knowledge, and (3) To complete the legal framework envisaged in (2) for it to be included as part of the results of this round of trade negotiations.[156]

Currently, the relationship between the TRIPS Agreement and the CBD as well as the protection of TK, TCEs, and expressions of folklore is already raised as one of the issues put forth by the developing countries in the implementation of the Uruguay Round Agreements, in particular that of the TRIPS agreement. This issue is likewise mentioned in paragraph 19 of the Doha Ministerial Declaration.[157]

V. Sui Generis National Legislations

T’nalak designs are like family heirlooms, handed down from mother to daughter.

Only females weave.

One weaver has inherited and kept a m’baga, a sampler template of sorts,

A number of countries, the Philippines included though IPRA,[159] have already decided that the existing intellectual property system is not, on its own, sufficient in protecting traditional knowledge. To address this, these countries have either enacted or are in the process of enacting a sui generis system of protection.[160]

This idea has its origins from the Tunis Model Law on Copyright in 1972, and the Model Provisions enacted a decade later in 1982. Under the Model Provisions of 1982, the protections are intended to provide protection for expressions of folklore against illicit exploitation and other prejudicial actions.[161] While other member states who enacted such asystem of protection have these ends in mind, another purpose was to provide protection for Intellectual Property in an effective and uniform manner.[162] Panama, on the other hand, enacted its sui generis legislation with the objective of protecting collective IP rights and TK through registration, promotion, commercialization and marketing of their rights in such a way as to give prominence to indigenous socio-cultural values and cultural identities and for social justice.[163] In addition, the Panama legislation aims to protect the authenticity of crafts and other traditional artistic expressions. The South Pacific Model Law for National Laws of 2002,[164] aside from providing protection its Preamble, provides that, “the Model Law should not complement and not undermine IP laws.” Mindful of the growing market for Indian Crafts, the United States promulgated the U.S.A. Indian Arts and Crafts of 1990, where the institution of a Database of Official Insignia was provided.[165]

A common thread running through all these different legislative enactments is the protection of economic value of TCEs, providing the possibility for commercial exploitation. Except for the South Pacific Model Law for National Laws, these sui generis systems were not intended to supersede the application of Intellectual Property Laws as regards TCEs and TK.

Under the WIPO’s analysis[166] of Sui Generis systems, a comparison was made between the Tunis Model Law, the WIPO Model Provisions, and national legislations[167] where it was shown that the sui generis legislations of this country provide for a wider scope in terms of the subject matter as opposed to the 1982 Model Provisions. An analysis of the scope provided in the 1976 Tunis Model Law would show that the scope of folklore under Section 18 was defined as covering not just literary and artistic works, but likewise, scientific works. The narrowing of the scope of protection was apparent in the WIPO Model Law which failed to include scientific works and was focused only on the arts.[168] Despite this, however, the Panama Law No. 20 deemed it proper to include biological, medical, and ecological knowledge, whereas the South Pacific Model law included a wider scope. Under this model, subject matter covers expressions of culture defined as, “any ways in which TK appears or is manifested.” It is important to note that the U.S.A Indian Arts and Crafts Act did not include scientific knowledge per se, as its purpose was primarily a truth-in-advertising act.[169] Nonetheless, these legislations were consistent in including works of art and TCEs.

While some countries chose to enact a national law, other territories decided on entering into regional agreements with their neighboring countries. On March 2, 1977, some countries in the Africas entered into the Bangui Agreement.[170] The Bangui Agreement established the Organisation Africaine de la Propiété Intellectualle. The Agreement, which came into force in February 28, 2002, covers patents,[171] utility models,[172] trademarks,[173] industrial designs,[174] trade names,[175] geographical indicators,[176] copyright,[177] unfair competition,[178] integrated circuit layouts,[179] and plant variety rights.[180] One of the purposes of the Bangui Agreement was to protect TCEs, and it appears that the expressions of folklore[181] mentioned in the agreement are protected as copyright works.[182] Effectively, what the Bangui Agreement did was to relegate the status of “works capable of being subject to copyright” to the expressions of folklore mentioned therein whether or not they are on all fours with the requirements necessary for copyright under the TRIPS agreement. The signatories to the Bangui Agreement are all members of the WTO,[183] with the exception of Equatorial Guinea. Nevertheless, being an observer government, it also has ceded to the TRIPS agreement.[184] Hence, a question arises whether by relegating copyright status to these works, did the signatories of the Bangui Agreement agree to give the same protection and status to works of a similar nature as those in their agreement? Since “fake” works are usually not produced within the country, an important test of its effectiveness is how the signatory countries, as well as the beneficiaries which are the indigenous people themselves, are going to prosecute “infringement of their copyright” in non-OAPI countries.

The legislation of Panama, Panama Law No. 20, in providing very specific descriptions of subject matter covered is worth noting.[185] Since TCEs are as varied as the number of indigenous people in a certain country, this detailed provision of Panama providing for a classification system is laudable in one respect since it does not provide for very narrow nor very broad descriptions of protected material that would eventually be a source of confusion and guesswork for the implementing body. This specificity, however, may also work to the prejudice of those protected. For example, in Article 3[186] of the law which provides for traditional indigenous dresses, one wonders whether this traditional dress should be protected individually, or does protection only apply to that whole category? Moreover, it leads one to ask what the status is of a certain TCE or TK which is not included in the law. Does it become part of the public domain, or does it become protected still by analogy and implication? Since infringement often carries with it a penal sanction, this ambiguity might operate against the protection of TCEs. Similar to the Legislation of Panama which strives to create a classification and reference of TCEs would be the mandate in the Bangui Agreement which states that, “states shall inventorize, determine, classify, place in security and illustrate the elements that make up the cultural heritage.”[187] In terms of coverage of protection, the sui generis legislationsanalyzed by WIPO appear to have a common characteristic with regard to which works of art and tangible expressions are protected;[188] the means of protection that these legislations provide, however, differs.

A common feature that runs through the Model Provisions, the Bangui Agreement, the Panama Legislation, and the South Pacific Model Law, is the provision on reciprocity. The willingness to extend the same benefit afforded by these legislations and agreement is indicative of the desire of the signatories and countries to enter into an international agreement and at the same time an implied acceptance that the issue of protection of TCEs is something that must be undertaken on a global scale.

VI. Sui Generis Legislation For The Philippines

Because T’nalak is a product of the circumstances of the weaver and of the community in which she lives, it is difficult for outsiders to appreciate the value of the T’boli place on it. We can try and arrive at a monetary value by measuring the hours spent in production, or the value of the materials used to produce it. But that would be inadequate.[189]

The status of our intellectual property laws are currently under assault from the very old and the very new.[190] Traditional knowledge has posed a serious challenge for the current intellectual property laws.[191] These problems are often addressed by legislating a sui generis law that provides protection for this type of artwork and manifestations of culture, which do not fit into the western conceptions of intellectual property.

The Philippines, as an archipelago, has a very diverse group of indigenous people – some concerned primarily to protect the sacred nature of their TCEs while some strive to benefit economically and look at their culture as a means for them to survive. What may be seen as beneficial to one group may be disadvantageous to another. For example, a legislation which renders the publication and promotion of the TCE – through inclusion in government publication, information campaign, tourism advertisement etc – illegal and punishable might be favorable for an indigenous group whose primary concern is to keep the subject TCE within the indigenous group and prevent outsiders and third persons from acquiring knowledge. On the other hand, a similar prohibitive law might not be beneficial for another indigenous group (referred as the pragmatic group in this paper) whose main concern is to derive economic benefit from the handicrafts. Thus, it is important that before a law, whether a sui generis or one that expands our current intellectual property laws, be enacted, a careful study and classification of indigenous groups and TCEs must be done.

For purposes of outlining a proposal for a sui generis legislation, the scope would be limited only to the pragmatic group. Any recommendation is to primarily address the concern of this group, which is deriving economic benefit from the TCEs or handicrafts. This proposal was made after interviews with dreamweavers, and hence, these suggestions would be applicable only assuming that the indigenous group has similar concerns and goals as that of the T’bolis.

A. Policy Context and Objectives

As an important part of a nation’s cultural heritage, TCEs and expressions of folklore as well as its use and regulation is imbued with State interest. Although considered a part of the nation’s cultural heritage, it cannot be denied that these TCEs are considered as community property of the indigenous group. Thus, any legislation which would govern TCEs must take into consideration the balance of interest between the State and the indigenous people who, in the first place, must be the beneficiary of such legislation.

The balancing of interest must be taken into consideration when drafting a policy and objective in such a way that the interest of the State in preserving the cultural heritage of the nation does not conflict or unnecessarily encroach upon the exercise of ownership rights of the indigenous group. They are, after all, regarded as the owner, in terms of their desire to utilize their TCEs as a source of livelihood. To accomplish this, the State might need to undertake the role of parens patriae to the indigenous group and assure that sufficient safeguards are in place to regulate commercial dealings of TCEs. The policy objective of the Panama Law No. 20 and the U.S.A Indian Arts and Crafts Act of 1990 might provide instruction on how to accomplish this.

Under Panama Law No. 20, enacted in June 26, 2000, the objective of the law was to protect the collective IP rights and TK of indigenous communities. This is effected through registrations, promotion, commercialization, and marketing of their rights in such as way to give prominence to indigenous socio-cultural values and cultural identities and for social justice.[192] On the other hand, the U.S.A Indian Arts and Crafts Act of 1990 provides, under its policy objective, the prevention of commercial interests from falsely associating their goods or services with indigenous people. It also provides for the creation of a board to assist in the promotion and development of Indian arts and crafts.[193] A system of registration must also be provided in the policy of the legislation. This registration may be undertaken by the National Commission on Indigenous People (NCIP)[194] and the National Commission for Culture and the Arts (NCCA),[195] whose mandates include the promotion of the rights of the indigenous people and cultural heritage, respectively.

In terms of policy objectives the South Pacific Model Law for National Laws of 2002 may also be a source of reference, specifically its provision permitting tradition-based creativity and innovation, including commercialization thereof, subject to prior and informed consent and benefit sharing. Since our IPRA already provides the concept of prior and informed consent, this concept must likewise be retained in the law. Under our IPRA, customary laws were taken into consideration in terms of dispute resolution as well as to govern ownership. Although not in the Model Provisions of the WIPO nor in the other sui generis legislation, it is important to take into consideration customary laws. These should be incorporated into the policy framework of the legislation in order to give control to the indigenous people in alienating or governing their TCEs. Lastly, the sui generis legislation must not supersede nor render nugatory provisions in our current Intellectual Property laws which might be beneficial to the indigenous people whose works are sought to be protected.

B. Subject Matter

The diversity of TCEs and the cultures and interests surrounding them makes delineating the subject matter of any legislation governing expressions of culture a challenge. The WIPO Model Provisions gives a very general scope[196] providing for coverage on productions consisting of characteristic elements of traditional artistic heritage. These provisions remove the requirement in the Tunis Model Law on Copyright in 1976, which includes as one of the elements of folklore the element of being passed from generation to generation.[197] Some sui generis legislations have expanded on this definition. The legislation of Panama, for example, has included “collective IP rights” in addition to traditional knowledge, embodied in creations.[198]

The provision on “collective IP rights” is very relevant for TCEs especially for a legislation which aims to insert the community’s customary law. Since the ownership rights may be vested in a community, as opposed to one individual, this provision also has important ramifications in the event that a “copyright-like” protection be accorded to TCEs, as some other Model Legislations provide,[199] specifically on extending the period of copyright protection beyond the lifetime of the holder.

Probably the most important addition to include in the sui generis legislation for the Philippines would be the definition contained in the Bangui Agreement of OAPI. That is, “expressions of folklore” defined as productions of characteristic elements of the traditional artistic heritage developed and perpetuated by a community or by individuals recognized in meeting the expectations of such community. This provision specifies that works of individuals must be recognized as meeting the expectations of such community. This is very important if the group who owns the TCE would like to impose some control in terms of quality for the works produced by their members. For example, in the case of the Dreamweavers, there would be some weavers who, whether T’bolis or outsiders, would create a short cut to the manufacturing process of the T’nalak by omitting one step like the arduous dying process by using other dyes or a burnishing process or omitting it altogether. Since the produce of indigenous people are primarily sought for and prized due to their workmanship, the presence of low quality products in the market is damaging for the indigenous people, both in terms of the reputation of their produce as well as for the price they can command in the market.

Intellectual property laws, particularly the provisions on copyright and trademarks, give a good framework of what a sui generis legislation must provide in terms of protection. However, as discussed above, certain provisions of the copyright law on protected material might prove problematic as regards the nature of TCEs. A sui generis legislation may in itself provide that the material be protected and treated as a copyright, similar to what the Bangui Agreement provides. However, as discussed, this may bring to fore issues when a decision or award is sought under such provision, or when that award is questioned internationally. To address this, instead of stipulating that TCEs are to be treated and protected as copyright material, a clear and explicit legislation may provide instead the same effect and result. Mindful of these, some countries and groups[200] provided in their legislation a registration system conferring certain rights and privileges for the TCEs and “expressions of folklore” listed therein.

Another hurdle in treating “works derived from folklore” as copyright works instead of applying the sui generis law is the duration of protection. As copyrighted works, it will be mandatory that these become part of the public domain after the expiration of the period of protection. To address this issue, the State may take advantage of two provisions previously discussed in the earlier part of this paper – domaine public payant and community ownership.

The regime of domaine public payant was also embodied under the Tunis Model Law and was also used by the Bangui Agreement of OAPI.[201] Under the Tunis Model Law, the payment, which is a percentage of the receipts, must be made to a competent authority.[202] The same goes true with the Bangui Agreement which vests the collection of a relevant royalty to an administrative body. The Bangui Agreement, however, did not provide for a direct benefit to the community.[203] It is incumbent that should a similar provision on the sui generis legislation for the Philippines be adopted, the community whose TCE is the subject of payment must derive the benefit directly instead of being put up in a community fund to be shared by the whole indigenous community in the country.

As regards community ownership, instead of tying the period of protection to the lifetime of the person, the community may take ownership – through a provision for work for hire, assignment of rights or by provision of the statute – of the copyright, and extend the period of protection to the lifetime of the community. Consequently, a provision providing for protection, similar to the perpetual protection provision in trademarks for the period of actual use, should also be included as long as the subject TCE is still being used within the community concerned.

Under the Tunis Model Law and the WIPO Model Law, no specified criteria for protection were provided. Perhaps these laws deemed it proper, as deference to State sovereignty, to allow a wide latitude of flexibility to the countries enacting a legislation in limiting or expanding the conditions that a subject matter must meet prior to the grant of protection. In this regard, it is noteworthy that all legislations analyzed by WIPO in its comparative study provided for varying criteria.

In terms of providing the criteria for protection, it is in this regard that the important distinction between the traditional and pragmatic group be taken into consideration. For the pragmatic group, the criteria imposed by the Panama Law might be used as a basis for a national legislation. Under the Panama Law, the subject matter must be (i) capable of commercial use,[205] (ii) be based upon tradition, although it need not be “old,”[206] (iii) fit within the classification system established by Article 3 of the decree,[207] and (iv) be “collective,” i.e., the subject matter must have no known author or owner and no date of origin, and constitute the heritage of an entire indigenous people[208] or must be regarded as belonging to one or more of the indigenous communities of Panama.

Although also workable for the pragmatic group, the author does not agree with the criteria under the IACA. To be protected under the IACA, it must be an Indian Product as defined by law and its Implementing Regulations. Such product must meet these requirements: (1) produced after 1935 with the producer of the concerned Indian Product a resident of the United States, and (2) it must have recognizable likeness to Native Americans or symbols perceived as being Native American in origin as included in the Database of Official Insignia. However, imposing a limitation on protection on the basis that a certain product was produced after a certain period, in this case 1935, may not prove effective. Imposing such limitation would effectively put majority of the TCEs beyond the protection of the statute. The second requisite of recognizable likeness may be adopted by the State in order to pursue its interest of encouraging indigenous creations, especially handicrafts etc., to remain faithful or at least have a semblance with the traditional works. It would be an incentive for the indigenous people to remain faithful to the indigenous designs and processes in order to enjoy the special treatment accorded to TCEs.

D. Holder of Rights

The Tunis Model Law entrusts the exercise of the rights granted under the law to a competent authority. This is consistent with perceptions at the time it was enacted that indigenous people are not capable of managing their property. However, when the WIPO Model Provisions was drafted, this perception has gradually shifted. Thus, under the Model Law, the holder of rights is designated as either the competent authority or relevant community.[209]

The legislation of Panama as well as the South Pacific Model Law vests the right to the community. The South Pacific Law justifies this provision making the indigenous community the holder of the right on the basis of their being regarded as traditional owners as well as custodians of the TK or expressions of culture.[210] On the other hand, while the Panama legislation likewise vests ownership to the community, they are represented by their general congresses or traditional authorities. In addition, the Panama law is noteworthy in providing that more than one community can be registered collectively as holders of the rights. This provision may be added in a Philippine legislation for sui generis protection of TCEs to address the possible issue of overlapping rights, or similarities in TCEs.[211] It may also address possible issues that may arise due to intermarriage between members of the community with other communities as well as migration wherein because although the member of the indigenous group has left the original settling area, he or she still continues to practice their indigenous traditions.

While vesting the intellectual property to the indigenous community, the South Pacific Model Law, however, provides that for derivative works, the intellectual property vests in the creator as provided for by the national law. This provision granting rights to the author of the derivative work is consistent with the goals of intellectual property law which is to provide incentive for innovation. However, with regard to governing innovations and rewarding such derivative works with intellectual property rights, safeguards must be legislated to protect the indigenous group whose TCE had become the basis of said “new” creation. That is, two conditions must be incorporated in the sui generis legislation – domaine public payant and prior informed consent.[212]

E. Rights Conferred

The Panama legislation puts an emphasis on collective rights. Under the legislation, the right to apply for Intellectual Property over the protected subject matter is collective. These collective rights in turn govern two important aspects relevant for the pragmatic group – the right to authorize or prevent the use, commercialization,[213] and industrial reproduction.[214] The right to prevent or authorize third parties from acquiring exclusive intellectual property over the protected subject matter is also regarded under the law as a collective right.[215]

Probably one of the most relevant for the concerns of the pragmatic group, likewise conferred as a collective right in the Panama Law, is the provision regarding the granting of consent to the certification of cultural expressions as works of indigenous traditional art or handicraft and handmade by natives.[216] As mentioned earlier, for the protection of the TCE, it is important that the indigenous community has control of what will be regarded, marketed, promoted, and advertised as indigenous. Although laudable, the exemption on the law might defeat whatever rights conferred under this provision. Under the Panama Law, non-indigenous artisans in certain cases[217] can continue selling replicas of the crafts of the indigenous group, thus removing the exclusive economic right to produce and reproduce the said TCEs.

Although it encroaches upon the rights of the indigenous people, a national legislation similar to Panama’s Article 27 in Executive Decree No. 12[218] might be useful in encouraging local artisans to participate in the promotion and improvement of the indigenous people’s TCEs. Aside from this incentive, a similar provision – whether or not intended as such – would be ideal in a setting like the Philippines where the indigenous people often do not live in isolation but alongside other members of the locality who are not from the indigenous group. A provision such as this would also address the issue put forth by some scholars with regard to the status of the contribution of other members of the society, specifically the members of the locality, to the TCEs and the indigenous people’s handicrafts. Since TCEs cannot be isolated from the people to whom it belongs, a provision giving recognition as well as certain rights to non-indigenous people on the basis that they have devoted themselves to the production and reproduction of the TCEs would give recognition of these individuals’ or groups’ contribution to the indigenous culture. This right granted to local artisans, however, must be subject to a profit sharing provision similar to what is provided under Section 12 of the South Pacific Model Law.[219]

Since the restrictions imposed on property currently embodied in our intellectual property system failed to consider customary laws of the indigenous people, it is important that a legislation protecting TCEs should take into consideration the tradition of the indigenous people with regard to exchanges of property. The provision of the Panama Executive Decree No. 12 properly considered this. Article 11 of the Decree provides that “registration of the collective rights in an object or in traditional knowledge shall not affect the traditional exchange of the object or knowledge in question between indigenous peoples.” Herein, however, it is not clear whether the exchange is to be confined between indigenous people from the same group or as between indigenous people from different groups. Oftentimes, an indigenous group would be living within the same area as another indigenous group,[220] thus it would be inevitable and contrary to experience that no exchange of object or knowledge would occur. In this regard, a sui generis legislation in adopting Article 11 must define exchanges between indigenous people as that occurring not only between indigenous people of the same group but as between indigenous groups.

Under the South Pacific Model Law, a basket of “traditional cultural rights” is provided under Section 7.[221] This may serve as a basis for a sui generis legislation.

F. Procedure And Formalities

A sui generis law’s provision, no matter how good, is limited by the means prescribed under the law for its implementation. Under the Tunis Model Law, implementation is done through license agreements. The law provides for different requisites based on the purpose to which the license is sought for. That is, different requirements exist for licenses solely for teaching, scholarship, or research,[222] and another for reproduction.[223]

Under the Tunis Model Law, certain uses are not subject to consent of the author.[224] Rather for these uses, it is the mandate of the competent authority to issue a license under the rules governed by Annex A. Under the terms of Annex A, it is noteworthy that although a Translation License may be granted without the authority of the author, the license will not be granted in cases where a translation of the work in question has been published by or with authorization of the owner.[225] Moreover, the incorporation of the right of the owner to be heard is also sufficiently provided.[226] These provisions safeguarding the rights of the indigenous people and the grant of the right to the State to grant licenses sufficiently protect the right of the indigenous people to their TCE without unduly burdening the right of the State to promote its cultural heritage as reflected under the Tunis Model Law. However, what the drafters of the law failed to take into consideration is the fact that for traditional knowledge and TCEs, the owner is usually not designated as a person but is composed of a community who have an interest in the folklore in question. Thus, it is suggested that provisions for “prior informed consent of the community” must instead be taken into consideration, and alternatively on the provision providing for author’s rights. The provision on prior informed consent is already reflected under our IPRA,[227] and likewise provided for under the South Pacific Model Law.

Although the Tunis Model Law failed to take into consideration that TCEs mostly involve community rights, subsequent sui generis national legislations have reflected this. The legislation of Panama provides guidance in its special registration system[228] in dealing with the collective rights. In the application, the applicant must specify that a collective right is involved.[229] The registration must also specify that it belongs to one of the indigenous peoples of the country, the technique used, its history (tradition), and a brief description. More importantly, under Decree No.12 it states that the application shall be supported by inclusion of a copy of the rules of use of the indigenous collective right. These rules shall indicate the use or uses that are made of the traditional knowledge or of the object qualifying for protection.[230] The latter condition ensures that the use of the matter properly reflects the needs and wants of the indigenous group concerned.

Also contained in the Panama law is a provision that the application for registration must contain certain prescribed information including a specimen of the object sought to be protected. It is this latter provision that might be problematic for the pragmatic group. This provision brings to fore the question of whether or not it is only the works similar to the one provided in the specimen is protected, or does the protection extend to productions by analogy. If it is the former, then this would be a very limiting provision especially with regard to the fact that TCEs are dynamic. Moreover, for the pragmatic group who respond to the needs of the market, freezing and limiting the protection only to that provided prior as a specimen might prove detrimental to their interest.

Another important provision on the Panama legislation is the waiver of payment as well as the fact that it is expressly stated under the law[231] that the application procedure does not require legal services since a form will already be drawn up and manufactured by the Registry providing ease of use for the applicants. Moreover, the provision on publication and appeals would provide useful in cases where a wrongful application was made by an individual, group, or organization. However, another proposal and what this author suggests must be added in a sui generis system is a method wherein information is disseminated directly to the indigenous people who, considering that they are mostly located in areas where newspapers, radio and television are not widely available, might not be able to protest in time. In this regard, should a provision such as this be included in a Philippine legislation, it is suggested that aside from publication, notice to NCIP, which is distributed through its branches, must be added.

Under the Panama law, a Department of Collective Rights and Expressions of Folklore is established within the industrial property office to approve applications as well as maintain the registry.[232] One of the functions of this Department under the law is to go to indigenous communities, and gather information necessary for prosecution of applications they may wish to file.[233] Based on these administrative requirements, should a registry of TCEs be provided in a sui generis law, the functions of the Department of Collective Rights and Expressions of Folklore may be undertaken by the NCIP in cooperation with the Intellectual Property Office. Since the NCIP would already have existing offices in areas where a population of indigenous people is found, as mandated by the IPRA, the procedure of gathering applications and assisting applicants may be undertaken with relative ease as opposed to setting up a new agency or department who will perform similar functions as the Department of Collective Rights and Expressions of Folklore.

G. Sanctions And Enforcement Procedures

Under the Tunis Model Law, what constitutes infringement is the importation of copies of protected works into national territory.[234] A person guilty of infringement is obliged to cease infringement, and is also liable for damages, and when found that the infringement is willful, fine or imprisonment (or both)[235] will be meted out as a punishment. Though the punishment of imprisonment might deter people to infringe, the limiting definition of infringement itself, and what constitutes such, might prove ineffective. Under the definition, it is the importation of copies into the national territory which would constitute infringement. The question then is: What would happen if copies of the protected work is produced and distributed in another country or if the production is done within the national territory but not by its traditional owners? If strict construction of the provision in the Tunis Model Law is employed, this would not count as an infringement punishable thereunder.

The provision under the South Pacific Model Law providing for penal sanction and damages is noteworthy in drafting a sui generis national law. Under its provision, various forms of punishment for conviction by fine or term of imprisonment or both is provided. Also, traditional owners are given a right to institute civil proceedings. This right, provided under the act is useful specifically with regard to the different treatments under our Rules of Court providing a stricter evidentiary requirement for penal cases and only a preponderance of evidence[236] for civil cases. Interim remedies such as injunction is also provided under the South Pacific Model Law[237] as well as damage for loss, public apology, cease or reverse false attribution of ownership or derogatory treatment, order for account for profits, seizure of objects, and others. Alternative means of settling disputes is also provided, such as mediation proceedings and resort to customary laws.[238] The provision on the law providing for alternative modes of resolving issues may be beneficial for the pragmatic group who might desire to have disputes settled in an expeditious manner, similar to what the current business world requires. Similarly customary laws might also prove useful when settling disputes as between neighboring indigenous groups. This clause under the law providing for both criminal as well as civil liability for fine is also reflected under the U.S.A Indian Arts and Crafts Act of 1990, which criminalizes the misrepresentation of Indian Produced Goods and Products,[239] and providing stringent penalties for such. Since the law provides for penal provisions, a comprehensive reference of TCEs covered by the act is necessary for its implementation, especially of the criminal provisions. Otherwise, the law might be struck down for violation of due process.

Conclusion

The protection of indigenous people’s rights is an issue that demonstrates the intersection between our current intellectual property laws as well as the convention on human rights that our nation has committed for its people. A recognition that while there exists a right and a corollary desire to exercise it on the part of the indigenous people, the manner as well as the means for which the indigenous people might want to exercise this right differs. This is an important step, and an indispensable requisite in coming up with measures in assisting and protecting indigenous people.

What might be a solution for one group, the traditionalists, might prove devastating for another group. Thus, it is important that whatever legislation be passed advocating for sui generis legislation must have in mind that in the end, what the law should seek to protect is not the art or TCE itself but the people whose culture, way of life, and TCEs are involved. Our current intellectual property laws and local legislation on expressions of culture are not sufficient in putting forward the rights of the indigenous people. In the meantime, a sui generis law, while an international convention governing TCEs and expressions of culture is yet to be passed, will provide assistance in helping indigenous people assert their rights on their TCEs as well as generate income from such when they want to. The protection of TCEs and expressions of culture is not solely the concern of the indigenous people. As a source of our history and cultural heritage, the State also has a duty to protect these expressions of culture, and assist its people in realizing their rights as owners of these expressions of culture.

The struggle of the indigenous people is both a short-term and a long-term goal. The short-term goal is survival – trying to make do with their current resources, their TCEs included, in order to earn a living and to purchase their basic necessities. The long-term goal is to preserve a culture that is slowly dying. Some authors claimed that intellectual property laws – be it an existing Western Law or sui generis law – will be inadequate to address all the different types of cultures and expressions in existence.[240] However, for a people who have been unable to enjoy the fruits of progress, whatever right that a legal system can provide to empower these societies can give hope both to the people and the nation in general. After all, as one of our great Presidents had said, “those who have less in life must have more in law.”[241]

** University of the Philippines (J.D., B.A. Psychology); Former Research Assistant at the Institute of International Law Studies, University of the Philippines; Philippine Bar (2012). The author would like to express gratitude and dedicate this work to the Dreamweavers of Lake Sebu and to Lang Dulay who not only showed me the process of producing the T’nalak but likewise shared with me bits and pieces of their history. To the women of COWHED and members of the NCIP, thank you and may you continue to support the T’boli’s and help in the preservation of our country’s cultural heritage. Thank you also to my family, Ferdinand de Antoni for his suggestions on this paper and words of encouragement. Lastly, I would like to thank my adviser on this paper, Prof. Marvic Leonen.

[4] The Cordillera peoples, also collectively known as Igorot, refer to the assemblage of indigenous groups living in the highlands, foothills and river valleys of the Cordillera mountain ranges of Northern Luzon. Tingguian, Isneg and Northern Kalinga are found in the watershed areas of the Abulag, Itneg, and Chico rivers. Taken from International Work Group for Indigenous Affairs, available athttp://www.iwgia.org/sw16704.asp (last visited Nov. 24, 2010).

[5] The weaving industry covers not just textile but also basket weaving, banig weaving which is the local version of a sleeping mat made from buri, pandan or sea grass leaves, and other handicrafts.

[6] T’boli is also spelled in other textbooks as “Tiboli”. However, since the “i” letter does not really exist in the T’boli alphabet the term T’boli is more appropriate.

[7] The T’nalak is sometimes referred as Tinalak, however, the proper spelling in the T’boli’s language is “T’nalak”.

[8] As regards the designs seen on the T’nalak, there is indeed more than meets the eye. According to Lang Dulay, when she showed the author one of her designs, which looked like a simple repeating abstraction, the design is borne from her dream. Her dream was that of a little boy, shown in her design as a stick figure of a boy, who was sent by his mother to an errand. However, instead of following his mother, he played instead. Hence, when he went back to his mother, and his mother found out that he did not follow her, she got angry with him. As a result, the boy ran away into the mountains, and he played with fire. This dream was translated into abaca by Lang Dulay through a design which showed an abstracted figure of a boy and aggressive spherical shapes tinted in red representing the fire.

[9] The T’boli weavers are always women. In the T’boli tradition, the men were in charge of other tasks not relating to the actual weaving. This includes finding suitable abaca plants, as well as producing other crafts which the T’bolis are likewise known for like brass casting.

[10] This starts with the purchasing of the abaca. After this, one of the women would spend her whole day selecting which ones of the abaca would be used as vertical or as horizontal fibers. It is important that only the softer fibers are used to make the vertical weaves producing the design. Once the fibers are selected, they would then be tied together with the finest knots to make sure some parts are not dyed, and the design envisioned by the weavers would be translated properly into the T’nalak. The arduous process of tying alone, the first step in ensuring that the pattern in the weavers’ head is translated on the T’nalak , takes one whole day. This is followed by another three weeks of dying the T’nalak. Since the fibers are not dyed using today’s conventional dyes, it takes 3 weeks before the fibers are dyed using plants native to the T’boli’s place. After everything is prepared, the woman then sits in the longhouse and shuttles the thread back and forth pushing the threads to tighten with a flat piece of coco wood. She pushes it with three thuds. It is tight enough if the light does not stream through when the T’nalak is held up. She repeats the process over and over again. The production does not end after the last thread is incorporated, the T’nalak is given a sheen. To do this, the cloth is beaten and the rounded fibers are flattened to catch the light. The cloth is then rubbed with beeswax and burnished with a cowrie shell which will be done by the T’boli men.

[11] In the old days when the T’bolis still harvest their own abaca, the process of weaving takes even longer. This begins from the selection of the abaca, to the stripping of the fibers and eventually drying it. Nowadays, the T’bolis just purchase their abaca from other producers in the neighboring towns of Lake Sebu. One bundle would cost them fifteen pesos; they would normally use 25 bundles to produce 6 meters of T’nalak.

[12] The length of the T’nalak is constrained by the length of the Abaca fibers, hence, the regular length of a T’nalak is six meters.

[13] The definition of sui generis proposal in this paper does not necessarily amount to a proposal for a new legislation, the sui generis protection to copyright may be embodied as well in the current intellectual property laws through amendment.

[18] Supra note 15 at 56. As an African delegate noted, the concept of folklore has distinct interpretations based on region, that is, the conception in Africa of “folklore” was broad and encompassess all aspects of cultural heritage, including scientific knowledge. On the other hand, the western conception of “folklore” is typically focused on artistic, literary, and performing works. His observation was supported Aboriginal Australian representative.

[30] Id. at 14, 17-18. Although Farley used the term “realist” to refer to this group, the researcher deems it more proper to use the term “pragmatic”. It is the researcher’s belief that the word pragmatic more accurately reflects the mindset of these groups rather than realist.

[33] The Gawad ng Manlilikha Award was created by virtue of Republic Act No. 7355, entitled, An Act Providing for the Recognition of National Living Treasures, otherwise known as the Manlilikha ng Bayan, and the Promotion and Development of Traditional Folk Arts, Providing Funds Therefor, and for Other Purposes. Under the law, Section 2, it is declared as a policy of the State to preserve and promote its traditional folk arts whether visual, performing, or literary, for their cultural value, and to honor and support traditional folk artists for their contribution to the national heritage by ensuring that the artistic skills which they have painstakingly cultivated and preserved are encouraged and passed on to future generations of Filipinos.

[34] The work of Lang Dulay sells for Php1000.00 per meter, her students’ works are priced at Php500, for other weavers the price ranges from Php300-450.00.

It has been oft-said that due process is one of the cornerstones of a free society. A society bereft of due process is one where tyranny prevails and arbitrariness and caprice defines the norm. The right is enshrined in the first sentence of our Bill of Rights, that no person shall be deprived of life, liberty, and property without due process of law.[2] Due process is the very essence of invaluable justice, and therefore, denial of due process is no less than a denial of justice itself.[3] So paramount is the right that it forms the very foundation of the adversarial system that is instituted by our laws for the settlement of disputes and controversies.

The right as it is framed is broad and all-encompassing. In the words of Justice Frankfurter, the Due Process Clause embodies a system of rights based on moral principles so deeply imbedded in the traditions and feelings of our people as to be deemed fundamental to a civilized society as conceived by our whole history.[4] However, it cannot be denied that there can be no controlling and precise definition of due process[5] for it is as elusive as a definition of Philippine society and its members that it seeks to protect. To be sure, eminent jurists have attempted abstractions to arrive at a meaningful concept of due process. Judge Thomas Cooley, in his treatise on Constitutional Law, defines due process as:

Due process of law in each particular case means such an exertion of the powers of the government as the settled maxims of law permit and sanction, and under such safeguards for the protection of individual rights as those maxims prescribed for the class of cases to which the one in question belongs.[6]

Indeed, contemporary constitutional doctrine has held due process as furnishing “a standard to which governmental action should conform in order that deprivation of life, liberty or property, in each appropriate case, be valid.”[7] But what standard does due process signify? In the landmark case of Ermita-Malate Hotel Assn. v. Mayor of Manila,[8] the Supreme Court declared:

[Due process] is responsiveness to the supremacy of reason, obedience to the dictates of justice. Negatively put, arbitrariness is ruled out and unfairness avoided. To satisfy the due process requirement, official action, to paraphrase Cardozo, must not outrun the bounds of reason and result in sheer oppression. Due process is thus hostile to any official action marred by lack of reasonableness. Correctly has it been identified as freedom from arbitrariness. It is the embodiment of the sporting idea of fair play. It exacts fealty “to those striving for justice’ and judges the act of officialdom of whatever branch ‘in the light of reason drawn from considerations of fairness that reflect traditions of legal and political thought.”[9]

The foregoing principles underlie the processes observed in the furtherance of justice and implementation of the law by administrative agencies. However, such lofty principles present difficulties in translating them into concrete frameworks to address the pressing issues surrounding cases of flesh and blood. Concrete standards that considerably restrain the exercise of discretion of the administrative decision-maker are crucial. Yet in the delineation of the line between discretion and deference, we only have jurisprudence, both Philippine and American, to turn to as a guide. In his dissent in Romualdez v. Commission on Elections,[10] Justice Dante Tinga explains the expansion of the bounds of due process protection:

The potency of the due process clause has depended on judicial refinement, to allow for the crystallization of its abstract ideals into a set of standards, from which a deliberate determination can be had whether the provision bears operative effect following a given set of facts.[11]

The contours of the Philippine concept of due process have been tediously developed through the resolution of actual and concrete cases which involve real and substantive rights of persons. As the law stands, due process is understood to involve both a substantive and a procedural aspect.[12] The procedural aspect of due process has been said as the means by which parties may assert substantive rights[13] and dictate the experiences ordinary people have with the law.[14] The repeated contextualization of the law by giving it efficacy within the constructs of the realities faced by modern Philippine society has often breathed life into our own democratic institutions.

This concept of due process, as it is understood in contemporary Philippine law, is the very basis upon which our present mechanisms for dispute settlement rest. It must be remembered that the framework of law that we have in place exists precisely for a definite purpose: the enforcement and protection of rights enshrined by law and the Constitution. Accordingly, the question begs itself to be asked: how well do our existing legal frameworks safely guarantee the enjoyment of this fundamental right? For indeed, it is only when we test the efficacy of our legal frameworks from the yardstick of rigorous critique that we are able to advance the nation towards the achievement of a truly just, humane, and democratic society.

For this paper, we strived to examine the system of administrative adjudication of disputes through quasi-judicial agencies explicitly empowered by law for such purpose. This paper examines a line of contemporary rulings by the Supreme Court effectively denying the remedy of annulment of judgments from final decisions or orders of quasi-judicial agencies. The paper focuses on examining the general law governing the delineation of jurisdiction between courts and administrative agencies and proceeds to examine the roots of the doctrine and the rationale given therefor. Finally, the paper re-examines such doctrine through the lens of procedural due process and proposes an alternate procedure that affords an opportunity to remedy the tolerance of violation of rights to which the present system is most vulnerable.

II. Quasi-judicial Power and the Philippine Legal System

In general, administrative power is concerned with the work of applying policies and enforcing orders as determined by proper governmental organs.[15] Administrative power flows from executive power of the Government and is therefore held by the President and delegated to his officials and the corresponding employees of administrative agencies who are empowered to act and implement the law within its prescribed limits. Corollary to the power of control, the President also has the duty of supervising the enforcement of laws for the maintenance of general peace and public order.

As a result of the growing complexity of the modern society, it has become necessary to create more and more administrative bodies to help in the regulation of its ramified activities. Specialized in the particular fields assigned to them, they can deal with the problems thereof with more expertise and dispatch than can be expected from the legislature or the courts of justice. This is the reason for the increasing vesture of quasi-legislative and quasi-judicial powers in what is now not unquestionably called the fourth department of the government.[16]

A. Quasi-judicial Power of Administrative Agencies

Quasi-judicial or administrative adjudicatory power is the power held by certain administrative agencies to hear and determine questions of fact to which the legislative policy is to apply and to decide in accordance with the standards laid down by the law in enforcing and administering the same.[17]

A quasi-judicial agency has been defined as “an organ of government, other than a court or legislature, which affects the rights of private parties through either adjudication or rule-making.”[18] Essentially, a quasi-judicial agency is one which exercises a discretion that is essentially judicial in character but is not a tribunal within the judicial branch of government and is not a court exercising judicial power in the constitutional sense.[19]

The administrative body exercises its quasi-judicial power when it performs in a judicial manner an act which is essentially of an executive or administrative nature, where the power to act in such manner is incidental to or reasonably necessary for the performance of the executive or administrative duty entrusted to it. In carrying out their quasi-judicial functions, the administrative officers or bodies are required to investigate facts or ascertain the existence of facts, hold hearings, weigh evidence, and draw conclusions from them as basis for their official action and exercise of discretion in a judicial nature.[20]

It has been said that “the very definition of an administrative agency includes its being vested with quasi-judicial powers.”[21] This is not necessarily true, for a broad and haphazard appreciation of the said dictum would have the effect of vesting the entire executive branch, with all its bureaus and instrumentalities, with quasi-judicial power, despite the actual delineation of the powers vested in such agencies by Congress. Numerous cases have already drawn a distinction between mere exercise of administrative power and quasi-judicial discretion.

The very essence of this adjudicatory power is not simply the coupling of the faculty of receiving evidence and making conclusions of fact therefrom but rather the inclusion of the faculty of applying the law to such conclusions. Judicial or quasi-judicial function involves the determination of what the law is, and what the legal rights of the contending parties are with respect to the matter in controversy.[22] In other words, the tribunal, board or officer exercising judicial or quasi-judicial function must be clothed with power and authority to pass judgment or render a decision on the controversy by construing and applying the laws to that end.[23]

Thus, in Bautista v. Court of Appeals[24]and Santos v. Go,[25]the Supreme Court held that the Department of Justice (DOJ) is not a quasi-judicial agency or its public prosecutors, strictly, quasi-judicial officers.[26] It has likewise been held that the National Conciliation and Mediation Board (NCMB) does not possess adjudicatory or quasi-judicial powers as provided by the Labor Code and Executive Order No. 126.[27] Where the law intended that an administrative agency is limited to performing investigations or fact-finding functions, the agency cannot exercise quasi-judicial functions.[28]

In general, the quantum of quasi-judicial powers which an administrative agency may exercise is defined in its enabling act. In other words, the extent to which an administrative entity may exercise such powers depends largely, if not wholly, on the provisions of the statute creating or empowering such agency.[29] Nonetheless, a grant of jurisdiction on quasi-judicial agencies necessarily includes such implied powers that can be inferred or are implicit in the wordings of the law or conferred by necessary or fair implication.[30] Thus, it has been held that the issuance of an ex parte cease and desist order is the grant to a tribunal or agency of adjudicatory power, or the authority to hear and adjudge cases, should normally and logically be deemed to include the grant of authority to enforce or execute the judgments it renders, unless the law provides otherwise.[31]

Be that as it may, it must be emphasized that the grant of adjudicatory powers is in the nature of a limited and special jurisdiction; that is, the authority to hear and determine a class of cases within the agency’s competence and field of expertise.[32] The rationale for such rule is rooted in the principle of separation of powers. The investiture of quasi-judicial powers on a quasi-judicial agency does not put such agency at par with the regular courts of justice. In conferring such adjudicatory powers and functions on an administrative agency, the legislature could not have intended to provide it with all the vast powers inherent in a regular court of justice.[33] Thus, it has been held that a quasi-judicial agency has no authority to issue a writ of certiorari.[34]

B. Due Process before Quasi-Judicial Agencies

Considering the very nature of quasi-judicial power touches upon fundamental and proprietary freedoms and rights, it is significant to note the malleable standard of due process that has emerged in proceedings before administrative agencies exercising quasi-judicial power. The fundamental requirement of due process is the opportunity to be heard “at a meaningful time and in a meaningful manner”[35] or an “opportunity to be heard”.[36] Indubitably, procedural due process of law lies at the foundation of a civilized society which accords paramount importance to justice and fairness.[37] The seminal case of Ang Tibay v. Court of Industrial Relations[38] provides for seven (7) “cardinal rights” in justiciable cases before administrative tribunals. These rights have been summarized, as follows:

1) The right to a hearing, which includes the right to present one’s case and submit evidence in support thereof.

2) The tribunal must consider the evidence presented.

3) The decision must have something to support itself.

4) The evidence must be substantial.

5) The decision must be rendered on the evidence presented at the hearing, or at least contained in the record and disclosed to the parties affected.

6) The tribunal or body or any of its judges must act on its or his own independent consideration of the law and facts of the controversy and not simply accept the views of a subordinate in arriving at a decision.

7) The board or body should, in all controversial questions, render its decision in such a manner that the parties to the proceeding can know the various issues involved, and the reason for the decision rendered.[39]

These standards laid down in Ang Tibay provide a more concrete framework of due process that takes further the words of Daniel Webster of due process as requiring that “a law which hears before it condemns, which proceeds upon inquiry and renders judgment only after trial.”[40] This right to procedural due process is “absolute” in the sense that it does not depend upon the merits of a claimant’s substantive assertions.[41] Insofar as administrative proceedings are concerned, the central element of fairness is essential.[42] This principle of procedural due process has been explained, as follows:

At its most basic, procedural due process is about fairness in the mode of procedure to be followed. It is not a novel concept, but one that traces its roots in the common law principle of natural justice.

Natural justice connotes the requirement that administrative tribunals, when reaching a decision, must do so with procedural fairness. If they err, the superior courts will step in to quash the decision by certiorari or prevent the error by a writ of prohibition. The requirement was initially applied in a purely judicial context, but was subsequently extended to executive regulatory fact-finding, as the administrative powers of the English justices of the peace were transferred to administrative bodies that were required to adopt some of the procedures reminiscent of those used in a courtroom. Natural justice was comprised of two main sub-rules: audi alteram partem – that a person must know the case against him and be given an opportunity to answer it; and nemo judex in sua cause debe esse – the rule against bias.[43]

The rule on procedural due process as applied to quasi-judicial agencies is synthesized in contemporary jurisprudence, particularly in Mendoza v. Commission on Elections:[44]

The first of the enumerated rights pertain to the substantive rights of a party at hearing stage of the proceedings. The essence of this aspect of due process, we have consistently held, is simply the opportunity to be heard, or as applied to administrative proceedings, an opportunity to explain one’s side or an opportunity to seek a reconsideration of the action or ruling complained of. A formal or trial-type hearing is not at all times and in all instances essential; in the case of COMELEC, Rule 17 of its Rules of Procedure defines the requirements for a hearing and these serve as the standards in the determination of the presence or denial of due process.

The second, third, fourth, fifth, and sixth aspects of the Ang Tibay requirements are reinforcements of the right to a hearing and are the inviolable rights applicable at the deliberative stage, as the decision-maker decides on the evidence presented during the hearing. These standards set forth the guiding considerations in deliberating on the case and are the material and substantial components of decision-making. Briefly, the tribunal must consider the totality of the evidence presented which must all be found in the records of the case (i.e., those presented or submitted by the parties); the conclusion, reached by the decision-maker himself and not by a subordinate, must be based on substantial evidence.

Finally, the last requirement, relating to the form and substance of the decision of a quasi-judicial body, further complements the hearing and decision-making due process rights and is similar in substance to the constitutional requirement that a decision of a court must state distinctly the facts and the law upon which it is based. As a component of the rule of fairness that underlies due process, this is the “duty to give reason” to enable the affected person to understand how the rule of fairness has been administered in his case, to expose the reason to public scrutiny and criticism, and to ensure that the decision will be thought through by the decision-maker.[45]

The jurisprudential force of the aforementioned principles are beyond doubt, having been time and again upheld by the Supreme Court in cases too numerous to mention. It must be pointed out, however, that the devil is in the details. Ever present is that lurking pitfall for the infringement of due process through prevailing administrative procedures promulgated by every administrative agency and the available recourses therefrom under our existing framework of law. That every administrative agency has rule-making powers to promulgate rules of procedure for proceedings before it is indubitable. Nonetheless, it appears that most, if not every administrative agency in existence, has saw it fit to exercise such power to its hilt which has resulted in the promulgation of rules of procedure as numerous as there are administrative agencies in existence. While most rules generally follow the sketch of due process as it is interpreted by the judiciary, every administrative issuance possesses a distinctive variance therefrom. These variances are presumably dictated by the technical niceties and nuances of the object or phenomenon subject of administrative regulation. Such provisions laid down by the agency concerned, however, has the effect of determining the overall manner by which a party is to be given an opportunity to be heard.

C. Administrative Appeal

The rules of procedures promulgated by administrative agencies may be expansive or restrictive, as determined by the appropriate authority upon a full consideration of the necessities surrounding the resolution of certain cases. This aspect is most apparent in the manner by which appeal is made from decisions, resolutions, or final orders of quasi-judicial agencies.

Consider for example the Department of Agrarian Reform (DAR) empowered to implement the State’s agrarian reform program and all agrarian reform laws.[46] The law explicitly vests the DAR with quasi-judicial power to determine and adjudicate agrarian reform matters as well as all matters involving the implementation of agrarian reform.[47]In this regard, the same law provides appeals from the DAR in the exercise of its quasi-judicial power may be brought to the Court of Appeals by certiorari within fifteen (15) days from receipt of a copy thereof.[48] However, pursuant to the DAR’s inherent rule-making power,[49] the DAR Secretary promulgated administrative issuances providing for a mode of appeal to the Office of the President from decisions, resolutions, and final orders of the DAR Secretary.[50] The validity of this additional mode of appeal to the Office of the President was upheld in Valencia v. Court of Appeals[51]by applying the principle of exhaustion of administrative remedies. The Court, citing the 1962 case of Calo v. Fuertes,[52] held:

An administrative decision must first be appealed to administrative superiors up to the highest level before it may be elevated to a court of justice for review. The power of judicial review may therefore be exercised only if an appeal is first made by the highest administrative body in the hierarchy of the executive branch of government.

In Calo v. Fuertes this Court held that an administrative appeal to the President was the final step in the administrative process and thus a condition precedent to a judicial appeal. Hence, an appeal to the Office of the President from the decision of the Department Secretary in an administrative case is the last step that an aggrieved party should take in the administrative hierarchy, as it is a plain, speedy and adequate remedy available to the petitioner.[53]

The clear implication of the following ruling is that an appeal to the Office of the President is always the final step in the hierarchy of administrative remedies pursuant to the rule on exhaustion of administrative remedies. This ruling, however, seems to conflict with black-letter law. On the matter of appeals from administrative agencies, Book VII, Chapter IV, Section 7 of the Administrative Code of 1987 provides that the general rule is that decisions of heads of administrative agencies shall be subject to judicial review pursuant to the procedure provided therein. Apparent adherence to the Calo doctrine is shown by Administrative Order No. 18, Series of 1987[54] and is cited by commentators as persuasive on this issue.[55] However, the jurisprudential value of Calo is doubtful considering the weight of authority against it.[56] More importantly, the explicit provisions of the Administrative Code, having the force of law enacted by the legislature,[57] prevail over the jurisprudential rule of Calo which was decided pursuant to principles of law under the old Administrative Code.

That having been said, the fact remains that the prevailing view in our jurisdiction remains faithful to Calo and the decisions sustaining such view.[58] This notwithstanding, the trend of recent laws enacted by Congress remains silent on the availability of the remedy of appeal, which is, in fact, merely statutory in nature.[59] Thus, where the enabling law or charter of an administrative agency is silent as to the availability of an appeal from the judgment of an administrative agency, then no appeal may be entertained therefrom. Accordingly, rules of procedure of certain quasi-judicial agencies such as the Energy Regulatory Commission and the Housing and Land Use Regulatory Board are silent on the availability of the remedy of appeal. Jurisprudence would provide that the appropriate remedy therefrom is judicial review by way of the writs of certiorari, mandamus, and prohibition.[60] Nonetheless, mention must be made of Administrative Order No. 22, Series of 2011[61] which provides that unless otherwise provided by special law, an appeal to the Office of the President shall be taken within fifteen (15) days from notice of the aggrieved party of the decision/resolution/order appealed from, or of the denial, in part or in whole, of a motion for reconsideration duly filed in accordance with the governing law of the department or agency concerned.

In this regard, the general rule as provided for by the Administrative Code must prevail. That is from any decision, resolution, or judgment of an administrative agency, the general remedy is judicial review in such a manner as may be provided by law[62] or the Rules of Court.[63] The applicability of Calo and Administrative Order No. 22, Series of 2011 is limited to those cases where the law explicitly provides for a mode of appeal from the agency concerned to the Office of the President, but is silent as to the procedure as to how such right of appeal may be exercised. This view is in consonance with the rule that administrative orders are but a species of the power of the executive to fill-in the details where the law is silent.

Rules of procedures promulgated by administrative agencies may likewise be restrictive. As to the right of appeal, a good example is the Rules of Procedure of the National Labor Relations Commission (NLRC). Rule VI thereof which governs appeals from the Labor Arbiter to the Commission proper. Section 1 of the said rule prescribes only ten (10) days, instead of the usual fifteen (15) day period, for the perfection of an appeal by any party from a decision, resolution, or final order of the Labor Arbiter.

D. Judicial Review from the Exercise of Quasi-judicial Discretion

It should be remembered that quasi-judicial powers will always be subject to true judicial power—that which is held by the courts.[64] Thus, the exercise of quasi-judicial power by administrative agencies necessarily implies the availability of recourse to the judiciary from such adjudications. This essential element was intimated by the Supreme Court in Cariño v. Commission on Human Rights:[65]

To be considered such, the faculty of receiving evidence and making factual conclusions in a controversy must be accompanied by the authority of applying the law to those factual conclusions to the end that the controversy may be decided or determined authoritatively, finally and definitively, subject to such appeals or modes of review as may be provided by law.[66]

The rationale for judicial review over exercise of quasi-judicial prerogative of administrative agencies lies with the very essence of judicial power since it is the duty of the judiciary to say what the law is.[67] The doctrine of separation of powers makes each branch of government co-equal and coordinate, but supreme in its own sphere. Accordingly, the executive department may not, by its own fiat, impose the judgment of one of its agencies, upon the judiciary.[68]

The determination of the nature, scope and extent of the powers of government is the exclusive province of the judiciary, such that any mediation on the part of the latter for the allocation of constitutional boundaries would amount, not to its supremacy, but to its mere fulfillment of its “solemn and sacred obligation” under the Constitution.[69] Thus, it is inherently the power of the judiciary, under Article VIII, Section 1 of the 1987 Constitution, to “determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.” The power of the courts to exercise judicial review likewise finds statutory basis in Article 7 of the Civil Code which provides that “[a]dministrative or executive acts, orders and regulations shall be valid only when they are not contrary to the laws or the Constitution.”[70]

Even prior to the explicit constitutional grant of such prerogative to the courts, the inherent power of the judiciary to review administrative acts is well-recognized in our jurisdiction. The original formulation of the doctrine in American jurisprudence tended to favour the interpretation that the doctrine of separation of powers precluded the exercise of judicial review over the exercise of administrative power, especially where the law silent as to whether or not such power is indeed available to the judiciary.[71]

The view is easily susceptible of criticism because of its obvious ramifications. In fact, reliance on the said doctrine has led the United States Supreme Court, through the eminent Justice Louis Brandeis, to declare that where “Congress did not provide a method of review, [the parties] are remediless whether the error be one of fact or of law.”[72]

This notwithstanding, it is interesting to note that litigants in the Philippines, despite it being an American colony then, were not precluded from availing judicial recourse from the improper exercise of administrative or quasi-judicial discretion. As early as 1921, in the case of Sotto v. Ruiz,[73] the Philippine Supreme Court, through Justice Malcolm held that “whether an article is or is not libelous, is fundamentally a legal question.”[74] Malcolm concluded that “[i]n order for there to be due process of law, the action of the Director of Posts must be subject to revision by the courts in case he has abused his discretion or exceeded his authority”.[75]

The same conclusion was likewise arrived at in Reyes v. Topacio[76] where again Justice Malcolm emphasized that while the Director of Posts has the power to issue fraud orders pursuant to his statutory authority, such power is subject to the limit that any “person injured may apply to the courts for redress in case the Postmaster General has exceeded his authority, or his action is palpably wrong.” By such rulings, the availability of judicial review over administrative action is well-recognized notwithstanding the absence of a statutory provision for judicial review of his action.[77]

Accordingly, it is undisputed that the exercise of quasi-judicial power of administrative agencies is always subject to the underlying power of the courts to scrutinize such acts on questions of law and jurisdiction, even though no right of review is given by statute.[78] As it is the inherent power of the courts to decide questions of law, such power cannot be withdrawn by the legislature through a law making a decision final and unappealable.[79] It must be noted that even if the law is silent as to the form of judicial review that may be undertaken from a judgment by an administrative agency, special civil actions for the writs of certiorari, prohibition, or mandamus will nevertheless be available.[80] In this regard, the words of the eminent Justice Irene Cortes are particularly enlightening:

In the matter of judicial review of administrative decisions, some statutes especially provide for such judicial review; others are silent. Mere silence, however, does not necessarily imply that judicial review is unavailable. Modes of judicial review vary according to the statutes; appeal, petition for review or a writ of certiorari. No general rule applies to all the various administrative agencies. Where the law stands mute, the accepted view is that the extraordinary remedies in the Rules of Court are still available.[81]

It is therefore clear that judicial recourse is always available from any ruling or judgment rendered by a quasi-judicial agency. While it is understandable that the Supreme Court may, in the exercise of its rule-making power, regulate the manner by which it is exercised, such power cannot be exercised to the extent of stifling such right of recourse available to litigants.[82] It is important to emphasize the availability of such remedies for as will be shown later on, certain jurisprudence have operated to cast a cloud in the remedies available to litigants in their attempts to protect or enforce their rights.

E. The Doctrine of Finality of Judgment

Apart from the principle of due process, another fundamental principle underpinning our system of justice is the doctrine of finality and immutability of judgments. This doctrine forms part of the very raison d’etre of courts. The early case of Arnedo v. Llorente[83] fully explains the concepts of finality and immutability of judgment which, even after more than a century, has remained the prevailing rule as to the disposition of disputes and controversies:

[I]f by this proposition it is claimed that a final judgment upon which, under the statute, the prevailing party is entitled as of right to have execution issue, can be vacated for the purpose of correcting such errors. It is true that it is the purpose and intention of the law that courts should decide all questions submitted to them “as truth and justice require,” and that it is greatly to be desired that all judgments should be so decided; but controlling and irresistible reasons of public policy and of sound practice in the courts demand that at the risk of occasional error, judgments of courts determining controversies submitted to them should become final at some definite time fixed by law, or by a rule of practice recognized by law, so as to be thereafter beyond the control even of the court which rendered them for the purpose of correcting errors of fact or of law, into which , in the opinion of the court it may have fallen.[84]

Such rule is necessitated not only by prudence or sound reason, but, more importantly, by the dictates of maintaining public stability and order. Thus, the Court went on to say:

The very purpose for which the courts are organized is to put an end to controversy, to decide the questions submitted to the litigants, and to determine the respective rights of the parties. With the full knowledge that courts are not infallible, the litigants submit their respective claims for judgment, and they have a right at some time or other to have final judgment on which they can rely as a final disposition of the issue submitted, and to know that there is an end to the litigation. “If a vacillating, irresolute judge were allowed to thus keep causes ever within his power, to determine and redetermine them term after term, to bandy his judgments about from one party to the other, and to change his conclusions as freely and as capriciously as a chameleon may change its hues, then litigation might become more intolerable than the wrongs it is intended to redress.” And no words would be sufficient to portray the disastrous consequences which would follow the recognition of unbridled power in a court which has the misfortune to be presided over by a venal and corrupt judge, to vacate and amend, in matters of substance, final judgments already entered.[85]

Contemporary rulings of the Supreme Court show a faithful adherence to the doctrine laid down in Arnedo from which we derive hornbook principles of remedial law. Thus, the rule remains that a judgment becomes final, immutable, and executory by operation of law upon lapse of the reglementary period to appeal when no motion for reconsideration is filed or no appeal is perfected within such period.[86] Once a judgment becomes final and executory it may no longer be altered, amended or modified, even if such modification is meant to correct what is perceived to be an erroneous conclusion of fact or law, and regardless of whichever court, be it the highest Court of the land, that renders it.[87] The purpose is to write finis to disputes once and for all. This is a fundamental principle in our justice system, without which no end to litigations will take place. Utmost respect and adherence to this principle must always be maintained by those who exercise the power of adjudication. Any act that violates such principle must immediately be struck down.[88] The principle is meant to preserve the stability of decisions rendered by the courts, and to dissuade parties from trifling with court processes. One who has submitted his case to a regular court necessarily commits himself to abide by whatever decision the court may render.[89]

F. Administrative Res Judicata

The principle of conclusiveness of prior adjudications is not confined in its operation to the judgments of courts, but extends as well to those of all other tribunals exercising adjudicatory powers.[90] In the early case of Peñalosa v. Tuason,[91] the Supreme Court held:

We do not believe that it could have been the intention of the Code of Civil Procedure thus to set at naught at those basic principles of the doctrines of res judicata which are recognized elsewhere in that code; for it is a general rule common to all civilized systems of jurisprudence that “the solemn and deliberate sentence of the law, pronounced by its appointed organs, upon a disputed fact or state of facts, should be regarded as a final and conclusive determination of the question litigated, and should forever set the controversy at rest.” Indeed it has been well said that this maxim is more than a mere rule of law; more even than an important principle of public policy; and that it is not too much to say that it is a fundamental concept in the organization of every jural society.[92]

It must be pointed out that the Court spoke of “appointed organs” which then necessarily referred to the judiciary. Such is understandable considering that the aforecited doctrine was promulgated only in 1912, long before the recognition of quasi-judicial power of administrative agencies. However, it is clear the Supreme Court was well aware that the finality of judgments and rulings is a necessary adjunct in any mechanism designed to resolve disputes and controversies, regardless of the body that rendered such judgment. The finality accorded to judgments spring from the very authority vested by law on the court or tribunal to adjudicate and resolve controversies.

Thus, in Brillantes v. Castro,[93] the Supreme Court, speaking through Justice Montemayor, unequivocally extended the application of the doctrine of finality and immutability of judgments to adjudications made by quasi-judicial agencies:

The authorities above cited on res adjudicata refer to decisions rendered by the courts. Are they applicable to decisions of a quasi-judicial body like the Wage Administration Service (WAS)? The answer is in the affirmative, as may be seen from the following authorities:

The rule which forbids the reopening of a matter once judicially determined by competent authority applies as well to the judicial and quasi-judicial acts of public, executive, or administrative officers and boards acting within their jurisdiction as to the judgments of courts having general judicial powers. This rule has been recognized as applying to the decisions of road or highway commissioners, commissioners of motor transportation, boards of audit, county boards, tax commissioners, boards, or officers, the federal trade commission, school commissioners, police commissioners, sewers commissioners, land commissioners or officers, collector of customs, referees in bankruptcy’ court commissioners, boards or other tribunals administering workmen’s compensation acts, and other like officers and boards. However, a particular decision or determination may not be conclusive, as where it was not a judicial, as distinguished from a legislative, executive, or ministerial, determination, or the matter was not within the jurisdiction of the officer or board.

There are, however, cases in which the doctrine of res judicata has been held applicable to judicial acts of public, executive, or administrative officers and boards. In this connection, it has been declared that whenever a final adjudication of persons invested with power to decide on the property and rights of the citizen is examinable by the Supreme Court, upon a writ of error or a certiorari, such final adjudication may be pleaded as res judicata.[94]

Interestingly, the ruling in Brillantes was promulgated in 1956, a time when the provision of quasi-judicial powers of administrative agencies was starting to gain acceptance in Philippine law. The 1963 case of Ipekdjian Merchandising Co., Inc. v. Court of Tax Appeals,[95] affirmed Brillantes. In the said case, the petitioner claimed that res judicata cannot be applied to decisions rendered by the Board of Tax Appeals considering that the said Board is devoid of judicial functions. In rejecting such claim, the Court held:

To say that the doctrine applies exclusively to decisions rendered by what are usually understood as courts would be to unreasonably circumscribe the scope thereof. The more equitable attitude is to allow extension of the defense to decisions of bodies upon whom judicial powers have been conferred.[96]

The Court went on further to say that while the Board was an administrative body, the law[97] had conferred judicial character on the proceedings and decisions of the BTA. Therefore, its decisions received judicial confirmation under the law and the same should be considered final and executory and enforceable by execution, just like any other decision of a court of justice.[98]

In San Luis v. Court of Appeals,[99] the Supreme Court, through Justice Irene Cortes, ruled that two different concepts of res judicata namely (1) bar by former judgment[100] and (2) conclusiveness of judgment[101] likewise extend with full force to administrative judgements. The doctrine became settled law and had been fully adopted in subsequent cases.[102] This doctrine was, however, tempered in Dinsay v. Cioco[103]and Montemayor v. Bundalian,[104] where the Court limited the application of res judicata applies only to judicial or quasi-judicial proceedings, not to the exercise of administrative powers in general. Dinsay involved an action for disbarment against Atty. Leopoldo D. Cioco who was then Clerk of Court and ex-officio sheriff for the Metropolitan Trial Court of Bacolod City. By way of a defense, Atty. Cioco invoked that the prior finding of administrative liability for grave misconduct against him constituted res judicata in the disbarment proceeding. In rejecting his claim, the Court ruled:

We find this contention to be without merit. “The doctrine of res adjudicata applies only to judicial or quasi-judicial proceedings and not to the exercise of the [Court’s] administrative powers,” as in this case. Neither can it be successfully argued that the instant disbarment case has been already adjudicated in the first Dinsay case. Therein, respondent was administratively proceeded against as an erring court personnel under the supervisory authority of the Court. Herein, respondent is sought to be disciplined as a lawyer under the Court’s plenary authority over members of the legal profession. While respondent is in effect being indicted twice for the same misconduct, it does not amount to double jeopardy as both proceedings are admittedly administrative in nature.[105]

In Montemayor, the petitioner invoked the prior dismissal by the Ombudsman of administrative charges against him as a bar to the investigation by the Presidential Commission against Graft and Corruption (PCAGC). The Supreme Court rejected such claim, as follows:

Lastly, we cannot sustain petitioner’s stance that the dismissal of similar charges against him before the Ombudsman rendered the administrative case against him before the PCAGC moot and academic. To be sure, the decision of the Ombudsman does not operate as res judicata in the PCAGC case subject of this review. The doctrine of res judicata applies only to judicial or quasi-judicial proceedings, not to the exercise of administrative powers. Petitioner was investigated by the Ombudsman for his possible criminal liability for the acquisition of the Burbank property in violation of the Anti-Graft and Corrupt Practices Act and the Revised Penal Code. For the same alleged misconduct, petitioner, as a presidential appointee, was investigated by the PCAGC by virtue of the administrative power and control of the President over him. As the PCAGC’s investigation of petitioner was administrative in nature, the doctrine of res judicata finds no application in the case at bar.[106]

The doctrine laid down in those cases was, in effect, a recognition of the prior rulings of the Supreme Court in labor cases which were then declared by law to be non-litigious and summary in nature.[107]

The doctrine has been fully consolidated in contemporary jurisprudence beginning with the case of United Pepsi-Cola Supervisory Union v. Laguesma[108] which reconciled these seemingly divergent trends of jurisprudence. Now as the rule stands, where administrative proceedings take on an adversarial character, the doctrine of res judicata certainly applies.[109] Regardless, it must be emphasized that the rule on finality of decisions, orders or resolutions of a judicial, quasi-judicial or administrative body is “not a question of technicality but of substance and merit,” the underlying consideration therefore, being the protection of the substantive rights of the winning party.[110]

III. Remedies from Final and Executory Judgments

A. Direct and Collateral Attack Against Final Judgments

Notwithstanding the doctrine of finality of judgments, this doctrine, like every principle of law, admits of exceptions. One of the most important exceptions to this doctrine is the concept of void judgments. Generally, a defective but nonetheless final and executory judgment is susceptible of either a direct or collateral attack on its validity.[111] The distinction between a direct and collateral attack on a judgment’s validity is expounded in Roces v. House of Representatives Electoral Tribunal:[112]

A direct attack on a judgment or resolution is defined as an attempt to avoid or correct it in some manner provided by law, in a proceeding instituted for that very purpose, in the same action and in the same tribunal. Conversely, a collateral attack is an attempt to impeach the judgment or resolution by matters dehors the record, before a tribunal other than the one in which it was rendered, in an action other than that in which it was rendered; an attempt to avoid, defeat, or evade it, or deny its force and effect, in some incidental proceeding not provided by law for the express purpose of attacking it; any proceeding which is not instituted for the express purpose of annulling, correcting, or modifying such decree; an objection, incidentally raised in the course of the proceeding, which presents an issue collateral to the issues made by the pleadings.[113]

Recognizing the distinction between a direct attack and collateral attack as a mode of declaring the nullity of judgments tends to be confusing if we confine the understanding of void judgments solely to such judgments which are null and void ab initio. A closer look at Philippine authorities show that there is a distinction between judgments that are inherently void, and therefore void ab initio, and there are certain judgments which are merely voidable. Such distinction accounts for certain nuances on the procedure for securing relief from such judgments.

The most important distinction between a void and a voidable judgment is that the former is inherently defective and is always susceptible of collateral attack while the latter may only be assailed by way of a direct proceeding.[114] Thus, in Gomez v. Concepcion,[115] the Supreme Court held:

… A voidable judgment is one which, though not a mere nullity, is liable to be made void when a person who has a right to proceed in the matter takes the proper steps to have its invalidity declared. It always contains some defect which may become fatal. It carries within it the means of its own overthrow. But unless and until it is duly annulled, it is attended with all the ordinary consequences of a legal judgment. The party against whom it is given may escape its effect as a bar or an obligation, but only by a proper application to have it vacated or reversed. Until that it is done, it will be efficacious as claim, an estoppel, or a source of title. If no proceedings are ever taken against it, it will continue throughout its life to all intents a valid sentence. If emanating from a court of general jurisdiction, it will be sustained by the ordinary presumptions of regularity, and it is not open to impeachment in any collateral action…”

But it is otherwise when the judgment is void. “A void judgment is in legal effect no judgment. By it no rights are divested. From it no rights can be obtained. Being worthless in itself, all proceedings founded upon it are equally worthless. It neither binds nor bars any one. All acts performed under it and all claims flowing out of it are void. The parties attempting to enforce it may be responsible as trespassers. The purchaser at a sale by virtue of its authority finds himself without title and without redress.[116]

As the rule developed in our jurisdiction, voidable judgments have emerged as judgments whose validity is vitiated by fraud or collusion.[117] A voidable judgment is not vulnerable to a collateral attack and may only be set aside by direct action to annul and enjoin its enforcement.[118] In this regard, it can be said distinction between void and voidable judgments is quite similar to the difference between a void or inexistent contract and voidable contracts.

Void judgments, on the other hand, are legally inexistent and cannot be the source of any obligation, rights, or responsibility. Where a judgment or judicial order is void in this sense it may be said to be a lawless thing, which can be treated as an outlaw and slain at sight, or ignored wherever and whenever it exhibits its head.[119] Such a judgment is held to be “a dead limb on the judicial tree, which should be lopped off or wholly disregarded as the circumstances require.”[120]

From the foregoing, the law provides for remedies by which the foregoing modes of assailing final and executory judgments may be made. The remedies available range from a petition for relief from judgment, a direct action for certiorari, a collateral attack against a void judgment, and petition for annulment of judgment.[121]

B. Collateral Attack against a Judgment

The power of a tribunal to collaterally attack the validity of a judgment rendered with want or excess of jurisdiction is well-settled in our jurisdiction. The 1913 case of Herrera v. Barretto[122]provides for an extensive review of jurisprudence then prevailing justifying the availability of the remedy of collateral attack against judgment. On this basis, the Supreme Court hinted the availability of a collateral attack on the validity of judgment where the same is “for lack of jurisdiction in the court to pronounce it.” In the 1918 case of El Banco Español-Filipino v. Palanca,[123] the Supreme Court, speaking through Justice Street, recognized the remedy of assailing the validity of a final and immutable judgment in a collateral proceeding:

But as we have already seen, the motion attacks the judgment of the court as void for want of jurisdiction over the defendant. The idea underlying the motion therefore is that inasmuch as the judgment is a nullity it can be attacked in any way and at any time. If the judgment were in fact void upon its face, that is, if it were shown to be a nullity by virtue of its own recitals, there might possibly be something in this. Where a judgment or judicial order is void in this sense it may be said to be a lawless thing, which can be treated as an outlaw and slain at sight, or ignored wherever and whenever it exhibits its head.[124]

It may be pointed out that notwithstanding the foregoing dicta of the Supreme Court, the ratio decidendi in the aforementioned cases do not lend full credence to collateral attacks of judgment as the same were mere incidental issues to the primary controversy. Nonetheless, such rulings laid down the jurisprudential rule which was to be adopted in subsequent rulings of the Supreme Court, thereby entrenching the doctrine of collateral attacks in Philippine law.

As the rule now stands, it is settled that a void judgment or decree is subject to collateral attack in which the purpose of the proceedings is to obtain some relief, other than the setting aside of the judgment, and the attack is only an incident.[125] In case of collateral attack, the principles that apply have been stated as follows:

The legitimate province of collateral impeachment is void judgments. There and there alone can it meet with any measure of success. Decision after decision bears this import: In every case the field of collateral inquiry is narrowed down to the single issue concerning the void character of the judgment and the assailant is called upon to satisfy the court that such is the fact. To compass his purpose of overthrowing the judgment, it is not enough that he show a mistaken or erroneous decision or a record disclosing non-jurisdictional irregularities in the proceedings leading up to the judgment. He must go beyond this and show to the court, generally from the fact of the record itself, that the judgment complained of is utterly void. If he can do that his attack will succeed for the cases leave no doubt respecting the right of a litigant to collaterally impeach a judgment that he can prove to be void.[126]

When a judgment is sought to be assailed in this manner, the rule is that the attack must be based not on mere errors or defects in the order or judgment, but on the ground that the same is null and void, because the court had no power or authority to grant the relief, or has no jurisdiction over the subject matter or over the parties, or both.[127] This doctrine is likewise based upon a court’s inherent authority to expunge void acts from its records.[128]

C. Action for Annulment of Judgment

The remedy of annulment of judgment is allowed only in exceptional cases and can only be availed of where the ordinary remedies of new trial, appeal, petition for relief or other appropriate remedies are no longer available through no fault of the petitioner.[129] The rule is well recognized in American and English common law, where it is settled that a judgment may be annulled or vacated on the ground that they were void because of lack of jurisdiction or because they were vitiated by fraud.[130] Nonetheless, the remedy is extraordinary in character and will not so easily lend itself to abuse by parties aggrieved by final judgments.[131]

The very purpose of the action is to have the final and executory judgment set aside so that there will be a renewal of litigation.[132] Due process dictates that litigants be afforded a reasonable opportunity to attack erroneous judgments and be shielded from the adverse effects of void judgments.[133] A judgment can be the subject of an action for annulment on two grounds: (a) the judgment is void for want of jurisdiction or lack of due process of law; or (b) the judgment has been obtained by fraud.[134]

It is only extrinsic or collateral fraud, as distinguished from intrinsic fraud, however, that can serve as a basis for the annulment of judgment.[135] Fraud is extrinsic where it prevents a party from having a trial or from presenting his entire case to the court, or where it operates upon matters pertaining not to the judgment itself but to the manner in which it is procured.[136] The overriding consideration when extrinsic fraud is alleged is that the fraudulent scheme of the prevailing litigant prevented a party from having his day in court.[137] The fraud or deceit cannot be of the losing party’s own doing, nor must he contribute to it. The extrinsic fraud must be employed against him by the adverse party, who, because of some trick, artifice, or device, naturally prevails in the suit.[138] It affects not the judgment itself but the manner in which said judgment is obtained.[139] When the ground invoked is extrinsic fraud, annulment of judgment must be sought within four years from discovery of the fraud, which fact should be alleged and proven. In addition, the particular acts or omissions constituting extrinsic fraud must be clearly established.[140]

On the other hand, lack of jurisdiction as a ground for annulment of judgment refers to either lack of jurisdiction over the person of the defending party or over the subject matter of the claim.[141] In a petition for annulment of judgment based on lack of jurisdiction, petitioner must show not merely an abuse of jurisdictional discretion but an absolute lack of jurisdiction. Lack of jurisdiction means absence of or no jurisdiction, that is, the court should not have taken cognizance of the petition because the law does not vest it with jurisdiction over the subject matter[142] or that the court never acquired jurisdiction over the person of the defendant by some means sanctioned by law.[143] Thus, where a petitioner filed the action for annulment of judgment precisely because of his non-inclusion as a party to the original case, annulment of judgment is proper.[144]

Annulment of judgment is a remedy in law independent of the case where the judgment sought to be annulled was rendered.[145] Consequently, an action for annulment of judgment may be availed of even if the judgment to be annulled had already been fully executed or implemented.[146] The availability of annulment of judgment does not require the petitioner to be a party to the judgment sought to be annulled. What is essential is that he can prove his allegation that the judgment was obtained by the use of fraud and collusion and that he would be adversely affected thereby.[147]

The remedy of annulment of judgment is significant for it is the only remedy available to a party aggrieved by a judgment that is procured by fraud or collusion. It is the remedy that breathes life to the fundamental principle of law that before a person can be deprived of his right or property he should first be informed of the claim against him and the theory on which such claim is premised.[148] It is a remedy so designed to protect a fundamental tenet of due process: that a party be given his day in court.

D. Jurisdictional Basis for Annulment of Judgments

Batas Pambansa (B.P.) Blg. 129, which took effect on August 14, 1981, defines the jurisdiction of the courts on annulment of judgments. Section 9(2) thereof explicitly vested in the then Intermediate Appellate Court (now Court of Appeals [CA]) the jurisdiction over actions for annulment of judgments rendered by the Regional Trial Courts (RTCs). On the other hand, no specific provision provides for the jurisdiction of the RTCs over annulment of judgments. However, such grant of jurisdiction may be inferred from Section 19 (6) of B.P. Blg. 129, which granted RTCs the exclusive original jurisdiction over “all cases not within the exclusive jurisdiction of any court, tribunal, person or body exercising jurisdiction or any court, tribunal, person or body exercising judicial or quasi-judicial functions the exclusive jurisdiction of any court, tribunal, person or body exercising jurisdiction or any court, tribunal, person or body exercising judicial or quasi-judicial functions.”[149]

In this regard, the Supreme Court, in the exercise of its rule-making power under Section 5(5) of Article VIII of the Constitution, promulgated Rule 47 of the Rules of Court which lays down the procedure for annulment of judgments, final orders, and resolutions. Particularly, Section 1 of the said rule specifically provides that only judgments, final orders and resolutions issued by the RTC in civil actions may be annulled by the CA. On the other hand, Section 10 thereof provides that judgments or final orders of Municipal Trial Courts (MTCs) shall be filed in the RTCs which have jurisdiction over the former.

Based on the foregoing, it may be easily gleaned that neither B.P. Blg. 129 nor Rule 47 of the Rules of Court provide for any power of the RTC or the CA to annul judgments, final orders and resolutions rendered by administrative agencies in the exercise of their quasi-judicial powers. However, the conferment of jurisdiction to quasi-judicial agencies over certain classes of cases had given rise to incidents, or at the very least, the threat of rendition of judgments despite lack of or excess of jurisdiction or presence of fraud or collusion perpetrated by the parties. When confronted with cases involving these matters, the Supreme Court’s rulings on the matter are rather obfuscating or worse, have the effect of stifling the remedy of annulment against judgments obtained by fraud or collusion.

IV. Annulment of Judgment Rendered Void: Contemporary Doctrines

A. Pre-B.P. Blg. 129 Rulings

Despite the absence of any provision in B.P. Blg. 129 pertaining to annulment of decisions rendered by quasi-judicial bodies, the Supreme Court, in the 1987 case of BF Northwest Homeowners Association, Inc. v. Intermediate Appellate Court,[150] ruled that the RTC had the power to entertain petitions for annulment of judgments of inferior courts and administrative or quasi-judicial bodies of equal ranking. Specifically, the Court held that RTCs have jurisdiction over actions for annulment of the decisions of the National Water Resources Council (NWRC). The Court noted that Section 89 of Presidential Decree (P.D.) No. 1067, otherwise known as the Water Code of the Philippines, explicitly provides that “decisions of the Council on water rights controversies may be appealed to the Court of First Instance of the province where the subject matter of the controversy.” As judgments of the NWRC, in the exercise of its quasi-judicial power, are directly appealable to the then Court of First Instance (now RTC), the Supreme Court concluded that the NWRC cannot be at par with the RTC and is thus, a quasi-judicial body ranked with inferior courts.[151] The ratio is in consonance with Sec. 21(1) of B.P. Blg. 129 which vests the RTC with original jurisdiction to issue writs of certiorari, prohibition, and mandamus in relation to acts or omissions of an inferior court. It is likewise in harmony with the rulings of the Court prior to the effectivity of B.P. Blg. 129, which recognized the power of a trial court to annul final and executory judgments.[152]

B. Promulgation of the Revised Rules of Civil Procedure

However, the promulgation of the Revised Rules of Civil Procedure[153] by the Supreme Court in 1997 had the consequence of restricting the scope of the remedy. In the 2000 case of Cole v. Court of Appeals,[154]the Supreme Court refused to apply its previous ruling enunciated in BF Northwest and instead relied on the positive provisions of Rule 47 as a restriction on the remedy of annulment of judgment. In the Cole case, the CA granted the petition for annulment of the decisions rendered by the Arbiter of the Housing and Land Use Regulatory Board (HLURB) and the Office of the President (OP) and declared the aforesaid decisions null and void for having been rendered without jurisdiction. In reversing the decision of the CA, the Supreme Court applied Rule 47 of the Rules of Court and ratiocinated that the remedy of annulment of judgment is confined to decisions of the RTC on the ground of extrinsic fraud and lack of jurisdiction:

Although the grounds set forth in the petition for annulment of judgment are fraud and lack of jurisdiction, said petition cannot prosper for the simple reason that the decision sought to be annulled was not rendered by the Regional Trial Court but by an administrative agency (HLU Arbiter and Office of the President), hence, not within the jurisdiction of the Court of Appeals. There is no such remedy as annulment of judgment of the HLURB or the Office of the President.[155]

The Supreme Court arrived at the same conclusion in the cases of Aguilar v. Civil Service Commission,[156] Elcee Farms, Inc. v. Semillano,[157] and Denina v. Cuaderno.[158] In Aguilar, the petitioner therein sought, from the CA, the annulment of the Decisions by the Department of Labor and Employment (DOLE) and Civil Service Commission (CSC) on the ground of lack of jurisdiction and lack of substantial evidence. The CA dismissed said petition for adopting a wrong remedy or mode of appeal. Finding no reversible error in the CA decision, the Supreme Court upheld the same and ruled that the petitioner therein is precluded from availing the remedy of annulment of judgment before the CA because Section 1, Rule 47 of the Rules of Court specifically covers only judgments, final orders and resolutions issued by the RTC in civil actions.[159] Since the assailed decision was not rendered by the RTC but by the DOLE and CSC acting in their quasi-judicial capacities, the Supreme Court was left without any other recourse but to deny the petition.

In the Elcee Farms case, Elcee Farms, Inc. filed before the CA a petition for annulment of the decision promulgated by the National Labor Relations Commission (NLRC), holding it liable for separation pay, moral, and exemplary damages to the illegally dismissed employees. This petition was dismissed by the CA on the ground of lack of jurisdiction. The Supreme Court sustained the CA and ruled that the latter has no jurisdiction to entertain a petition for annulment of a final and executory judgment of the NLRC because Section 9 of B.P. Blg. 129, as amended, only vests in the CA “exclusive jurisdiction over actions for annulment of judgments of Regional Trial Courts.”[160]

In the Denina case, the CA dismissed the petition which sought to annul the Decision rendered by the OP affirming the Resolution of the National Housing Authority (NHA), on the ground that the CA has no jurisdiction to annul judgments or final orders issued by the OP. In dismissing the petition, the Supreme Court ratiocinated:

The Rules of Court is very clear that the proper mode of elevating decisions of quasi-judicial bodies, like the Office of the President, to the Court of Appeals is through an appeal under Rule 43. Accordingly, when petitioner elevated the Decision of the Office of the President to the Court of Appeals through a petition for annulment of judgment under Rule 47, her petition was outrightly dismissed and correctly so. The Court of Appeals has jurisdiction to annul judgments, final orders or resolutions only of regional trial courts, pursuant to Section 9(2) of Batas Pambansa Blg. 129, as amended.[161]

The import of the foregoing cases is to deeply entrench the doctrine that the CA does not possess jurisdiction to annul judgments rendered by administrative agencies acting in their quasi-judicial capacities. However, it is worthy to note that these cases failed to discuss thoroughly the nature of the remedy of annulment of judgment vis-à-vis the rationale for the non-existence of such remedy from final orders of quasi-judicial agencies before courts.

C. Annulling Annulment of Judgment: The Macalalag Doctrine

This gap was filled in the case of Macalalag v. Ombudsman[162] where the Supreme Court thoroughly discussed the underlying principle for the “purported” absence of the remedy of annulment of judgment of quasi-judicial agenciess. In Macalalag, the private respondent filed with the Office of the Ombudsman a complaint for dishonesty against Macalalag, alleging that the latter endorsed and encashed the former’s pension checks for his personal benefit. The Ombudsman issued an Order declaring Macalalag administratively liable and dismissed him from the service with forfeiture of all benefits and disqualification from government service. The decision of the Ombudsman attained finality. Aggrieved, Macalalag filed an action for annulment of judgment with the CA on the ground of gross ignorance, negligence and incompetence of his former lawyer. The CA dismissed the petition for lack of jurisdiction. Hence, Macalalag filed a petition for review before the Supreme Court, arguing that Section 47 of the Rules of Court on annulment of judgments, refers to “Regional Trial Courts” in its generic sense that should thus include quasi-judicial bodies whose functions or rank are co-equal with those of an RTC.

The Supreme Court dismissed the petition and ruled that the CA does not have jurisdiction to entertain petition for annulment of judgment of the Ombudsman. Speaking through Justice Jose C. Vitug, the Supreme Court ruled in this wise:

Rule 47, entitled “Annulment of Judgments or Final Orders and Resolutions,” is a new provision under the 1997 Rules of Civil Procedure albeit the remedy has long been given imprimatur by the courts. The rule covers “annulment by the Court of Appeals of judgments or final orders and resolutions in civil actions of Regional Trial Courts for which the ordinary remedies of new trial, appeal, petition for relief or other appropriate remedies could no longer be availed of through no fault of the petitioner.” An action for annulment of judgment is a remedy in law independent of the case where the judgment sought to be annulled is rendered. The concern that the remedy could so easily be resorted to as an instrument to delay a final and executory judgment, has prompted safeguards to be put in place in order to avoid an abuse of the rule.Thus, the annulment of judgment may be based only on the grounds of extrinsic fraud and lack of jurisdiction, and the remedy may not be invoked (1) where the party has availed himself of the remedy of new trial, appeal, petition for relief or other appropriate remedy and lost therefrom, or (2) where he has failed to avail himself of those remedies through his own fault or negligence.

…

…The right to appeal is a mere statutory privilege and may be exercised only in the manner prescribed by, and in accordance with, the provisions of law. There must then be a law expressly granting such right. This legal axiom is also applicable and even more true in actions for annulment of judgments which is an exception to the rule on finality of judgments.[163]

As the Rules of Court, B.P. Blg. 129 and Republic Act No. 6770, otherwise known as “The Ombudsman Act of 1989,” do not provide for the remedy of annulment of judgments rendered by the Ombudsman, the Supreme Court simply held that such remedy cannot be availed of by party litigants regardless of the actual merit of their case. The ruling in the Macalalag case has been cited by the Supreme Court in its subsequent cases involving annulment of judgments of quasi-judicial agencies.

The ruling in Macalalag was followed by Galang v. Court of Appeals[164]which involved an action before the Securities and Exchange Commission (SEC) in exercise of its quasi-judicial power granted by P.D. No. 902-A. The corporation therein sought the annulment of the “Judgment By Compromise Agreement” rendered by the SEC on the ground of lack of jurisdiction. Specifically, the corporation alleged that one of the parties in the said compromise agreement had no authority to represent the corporation.

The Supreme Court, in resolving the petition, focused on the issue of jurisdiction, that is, whether or not the CA has jurisdiction to take cognizance of the petition for annulment of judgment under Rule 47 of the Rules of Court. In ruling that the CA is bereft of any jurisdiction to entertain a petition for annulment of judgment rendered by a quasi-judicial body, specifically the SEC, the Supreme Court explained:

An action for annulment of judgment is a remedy in law independent of the case where the judgment sought to be annulled is rendered. The concern that the remedy could so easily be resorted to as an instrument to delay a final and executory judgment has prompted safeguards to be put in place in order to avoid an abuse of the rule. Thus, among other things, the right to have a final judgment annulled must be expressly granted by law.In Macalalag v. Ombudsman we emphatically held that –

. . . The right to appeal is a mere statutory privilege and may be exercised only in the manner prescribed by, and in accordance with, the provisions of law. There must then be a law expressly granting such right. This legal axiom is also applicable and even more true in actions for annulment of judgments which is an exception to the rule on finality of judgments.

Unfortunately for the Camaganakans, the Revised Rules of Procedure in the SEC is silent as to the remedy of annulment of judgments of its final orders and resolutions.

And so we hold that the Court of Appeals indeed erred as it is without jurisdiction to entertain a petition for annulment of judgment of a final decision of the Securities and Exchange Commission.[165]

D. Harmonizing the Past and Present: The Springfield Doctrine

It must be remembered that the previous cases involved a petition for annulment of judgment originally filed with the CA assailing the final judgment of a quasi-judicial agency. Apart from the BF Northwest ruling, no case has yet resolved the question of whether or not an RTC has jurisdiction to annul judgments of quasi-judicial agencies in light of its general jurisdiction under Section 19(6) B.P. Blg. 129. This was the very question raised in the case of Springfield Development Corporation v. Presiding Judge,[166]in which the Supreme Court resolved the question in the negative. It must be remarked however, thatthe ruminations of the Court therein do not provide much enlightenment as to the rationale for such absence.In that case, the petitioner therein sought to annul the decision of the Department of Agrarian Reform Adjudication Board (DARAB) on the ground that the same was rendered without affording them any notice of hearing. In its decision, the Supreme Court took note of BF Northwest, where it ruled that despite the absence of any provision in B.P. Blg. 129, the RTC has the power to entertain petitions for annulment of judgments of inferior courts and administrative or quasi-judicial bodies of equal ranking. Hence, the Court proceeded to determine whether or not the DARAB is a quasi-judicial body with the rank of an inferior court. In concluding that the DARAB is a co-equal body with the RTC, the Supreme Court looked into the laws which created the DARAB, thus:

The DARAB is a quasi-judicial body created by Executive Order Nos. 229 and 129-A. R.A. No. 6657 delineated its adjudicatory powers and functions. The DARAB Revised Rules of Procedure adopted on December 26, 1988 specifically provides for the manner of judicial review of its decisions, orders, rulings, or awards. Rule XIV, Section 1 states:

SECTION 1. Certiorari to the Court of Appeals. Any decision, order, award or ruling by the Board or its Adjudicators on any agrarian dispute or on any matter pertaining to the application, implementation, enforcement or interpretation of agrarian reform laws or rules and regulations promulgated thereunder, may be brought within fifteen (15) days from receipt of a copy thereof, to the Court of Appeals by certiorari, except as provided in the next succeeding section. Notwithstanding an appeal to the Court of Appeals the decision of the Board or Adjudicator appealed from, shall be immediately executory.

Further, the prevailing 1997 Rules of Civil Procedure, as amended, expressly provides for an appeal from the DARAB decisions to the CA.

The rule is that where legislation provides for an appeal from decisions of certain administrative bodies to the CA, it means that such bodies are co-equal with the RTC, in terms of rank and stature, and logically, beyond the control of the latter.

Given that DARAB decisions are appealable to the CA, the inevitable conclusion is that the DARAB is a co-equal body with the RTC and its decisions are beyond the RTC’s control. The CA was therefore correct in sustaining the RTC’s dismissal of the petition for annulment of the DARAB Decision dated October 5, 1995, as the RTC does not have any jurisdiction to entertain the same.[167]

The Supreme Court then determined whether the CA has jurisdiction to hear and decide cases involving annulment of decisions rendered by the DARAB. At first blush, it may seem that the Court was inclined to rule that the CA has jurisdiction, since the DARAB is a co-equal body with the RTC. However, the Supreme Court committed a volte face and instead concluded that the CA is bereft of jurisdiction to hear and decide petition for annulment of decisions on the DARAB:

In Cole v. Court of Appeals, involving an annulment of the judgment of the HLURB Arbiter and the Office of the President (OP), filed with the CA, the Court stated that, “(U)nder Rule 47 of the Rules of Court, the remedy of annulment of judgment is confined to decisions of the Regional Trial Court on the ground of extrinsic fraud and lack of jurisdiction. . .”

. . .

In Macalalag v. Ombudsman, the Court ruled that Rule 47 of the 1997 Rules of Civil Procedure on annulment of judgments or final orders and resolutions covers “annulment by the Court of Appeals of judgments or final orders and resolutions in civil actions of Regional Trial Courts for which the ordinary remedies of new trial, appeal, petition for relief or other appropriate remedies could no longer be availed of through no fault of the petitioner.” …

While these cases involve annulments of judgments under the 1997 Rules of Civil Procedure, as amended, still, they still find application in the present case, as the provisions of B.P. Blg. 129 and the 1997 Rules of Civil Procedure, as amended, on annulment of judgments are identical.

Consequently, the silence of B.P. Blg. 129 on the jurisdiction of the CA to annul judgments or final orders and resolutions of quasi-judicial bodies like the DARAB indicates its lack of such authority.[168]

The clear implication of the Springfield doctrine is that there is no remedy of annulment of judgment from decisions, resolutions, and final judgments of quasi-judicial agencies of co-equal rank with an RTC. Despite the fact that the Supreme Court cited BF Northwest, a case seemingly contradictory with other afore-cited decisions, it would seem that the Springfield strengthened the Macalalag ruling that the CA is without jurisdiction over annulment of judgment of quasi-judicial bodies. Moreover, considering the fact that Springfield squarely involved the question of whether or not an RTC has jurisdiction to annul the judgments of any quasi-judicial agency, it would appear that the application of the Macalalag doctrine in Springfield has effectively resulted in the total absence of the remedy of annulment of judgment from decisions, resolutions, and final judgments of quasi-judicial agencies regardless of their rank.

This strict construction, as applied in the Macalalag case and other cases aforecited, was likewise applied in the succeeding cases decided by the Supreme Court.

In the case of Fraginal v. Toribia,[169] the Provincial Agrarian Reform Adjudicator (PARAD) issued a Decision ordering the termination of an Agricultural Leasehold Contract. Two years after its issuance, the petitioners sought to annul the said decision on the ground of lack of jurisdiction. The Supreme Court noted that an action for annulment of judgment, similar to a right to appeal, is a mere statutory privilege. Hence, it may only be exercised in the manner prescribed by, and in accordance with, the provisions of law.[170] Otherwise stated, the law must expressly grant such right of action, otherwise, the same may not be exercised. Since Rule 47 of the Rules of Court limits the subject matter of petitions for annulment to final judgments and orders issued by the RTCs in civil actions, it follows that the decision of the PARAD is not susceptible to petitions for annulment. The Court likewise noted that there is nothing in the 1994 DARAB New Rules of Procedure that allows a petition for annulment of a final PARAD Decision.[171] Hence, applying the Macalalag rule, the Supreme Court held that the dismissal of the petition for annulment of judgment was proper.

In the case of Padua v. Court of Appeals,[172] the petitioner sought to annul the decision of the Secretary of the Department of Agrarian Reform (DAR), which ordered the cancellation of the Order of Award in his favor, on the ground of lack of due process arguing that he was allegedly never impleaded as a party to the petition for cancellation of the Order of Award nor furnished a copy of the said petition. In denying the petition for annulment of the assailed Order, the Supreme Court reiterated its previous rulings, thus:

We reiterate that a petition for annulment of judgment under Rule 47 of the Rules of Court may be availed of against final judgments and orders rendered by either RTCs in civil actions or Municipal Trial Courts (MTCs). Final judgments or orders of quasi-judicial tribunals such as the National Labor Relations Commission, the Ombudsman, the Civil Service Commission, and the OP are beyond the reach of a petition for annulment under Rule 47. An order of the DAR Secretary issued in the exercise of his quasi-judicial powers is also outside its scope. Justice Jose C. Vitug, in Macalalag v. Ombudsman, explained the rationale behind the limited application of Rule 47, to wit:

The right to appeal is a mere statutory privilege and may be exercised only in the manner prescribed by, and in accordance with, the provisions of law. There must then be a law expressly granting such right. This legal axiom is also applicable and even more true in actions for annulment of judgments which is an exception to the rule on finality of judgments.

In the present case, neither Republic Act (R.A.) No. 6657 nor R.A. No. 7902 allows a petition for annulment of a final DAR decision or order. Section 61 of R.A. No. 6657 provides that a DAR decision or order be reviewable by the CA in accordance with the Rules of Court. In turn, the Rules of Court, consistent with Supreme Court Administrative Circular No. 1-95 and R.A. No. 7902, prescribes under Rule 43 that the mode of appeal from decisions or orders of DAR as a quasi-judicial agency is by petition for review to the CA. Padua’s recourse to a Petition for Annulment of the Garilao Order, rather than a petition for review, was therefore fatally infirm.[173]

In the final analysis, the weight of authority is to the effect that the remedy of annulment of judgments is denied solely due to the absence of a positive statutory provision recognizing such remedy.

V. Vacuum in the Law and Incentive for Fraud: Critique of the Macalalag Doctrine

While at first blush, the Macalalag doctrine finds sound basis because of its a fortiori approach in ascertaining the basis of the remedy of annulment of judgment, a second look at the doctrine may lead one to conclude otherwise.

The cases discussed earlier all involved adjudications of flesh and blood cases where the merits of the law have been extensively discussed Nonetheless, the enlightened disquisitions of the ponentes aside, the doctrines laid down by the said cases have inadvertently resulted in a disjointed fabric that fails to provide a workable framework that provides parties with an adequate remedy when a judgment of a quasi-judicial agency is procured by fraud or collusion.

A. Annulment of Judgment is an Adjunct of Due Process which cannot be Diminished by the Supreme Court’s Rule-making Power

In the early case of Anuran v. Aquino,[174] the Supreme Court emphatically upheld the right of a party litigant to maintain a direct action to question a judgment obtained by fraud or collusion:

There can be no question as to the right of any person adversely affected by a judgment to maintain an action to enjoin its enforcement and to have it declared a nullity on the ground of fraud and collusion practiced in the very matter of obtaining the judgment when such fraud is extrinsic or collateral to the matters involved in the issues raised at the trial which resulted in such judgment; and fraudulent collusion between an administrator and a third person resulting in an order or judgment whereby an interested person is unjustly deprived of his rights in or to the estate under administration, has always been recognized as a sufficient ground for the grant of relief from the order or judgment thus fraudulently procured.[175]

While it may not be disputed that the Supreme Court is empowered to lay down the parameters by which the remedy of annulment of judgment may be availed of, it is beyond cavil that the availability of the remedy itself is not one dependent on the positive grant of statutory authority. As explained below, the basis for the remedy is equity.

Indeed it can be reasonably argued that the right to invoke the jurisdiction of the courts from judgments of quasi-judicial agencies is a necessary adjunct of a person’s right to due process and therefore, a substantive right which cannot be diminished by the exercise of the Supreme Court of its rule-making power in accordance with Article VIII, Section 5 (5) of the 1987 Constitution.

B. Annulment of Judgment is a Remedy in Equity

If we are to dissect the gravamen of the Macalalag ruling, the cornerstone of these cases, it is apparent that its very foundation is the comparison between the remedies of appeal and annulment of judgment. But in doing so, it must be pointed out that the Court seems to be comparing apples with oranges. It bears stressing that the right to appeal is statutory and therefore a remedy based in law.[176] However, the remedy of annulment of judgment is essentially based on equity.[177] The distinction between a legal remedy and an equitable remedy is well-settled. The very nature of annulment of judgment as an equitable remedy makes it a remedy outside of the law, and therefore, unlike the right to appeal, it does not require an explicit statutory source. This line of analysis, however, fails to understand the nature of equity jurisdiction.

Historically, the test of equity’s jurisdiction in any given case was that the litigant could not get relief or could not get adequate relief in a court of common law.[178] Accordingly, the absence of an adequate remedy at law is a precondition for any type of equitable relief, and the availability of an adequate legal remedy is a threshold determination.[179] Pursuant to this principle of equity, the remedy of annulment of judgment is only available where “the ordinary remedies of new trial, appeal, petition for relief or other appropriate remedies are no longer available through no fault of the petitioner”.[180] Otherwise stated, the province of the remedy of annulment of judgment is precisely those cases where a party has no other legal remedy. The foundation of the remedy being equity, the same intrinsically exists outside the law and does not require a positive provision of law for its availability. It has been said that equity is “justice outside legality” and is broadly defined as justice according to natural law and right.[181] It is precisely when the law is silent that equity finds application in the adjudication of a controversy.[182] Thus, to anchor the rationale for the unavailability of the remedy of annulment of judgment on the absence of a statutory provision therefor is to belie the very essence of equity

In fact, the reasoning that the silence of the law may be used as justification for the blanket denial of petitions for annulment of judgment runs contrary to the provisions of substantive law. In this regard, Article 9 of the Civil Code provides that “[n]o judge or court shall decline to render judgment by reason of the silence, obscurity or insufficiency of the laws.”This provision accordingly calls for the application of equity precisely in situations where the law is silent, obscure, or insufficient.[183] The use of equity in this case fulfils the duty of the judge to fill the open spaces of the law.[184]

It must be remembered that Philippine courts are courts of both law and equity.[185] Equity jurisdiction aims to do complete justice in cases where a court of law is unable to adapt its judgments to the special circumstances of a case because of the inflexibility of its statutory or legal jurisdiction.[186] Equity is the principle by which substantial justice may be attained in cases where the prescribed or customary forms of ordinary law are inadequate.[187] In other words, equity’s purpose is to promote and achieve justice and to do so with some degree of flexibility.[188] Courts must be given wide latitude to resort to their equity jurisdiction to prevent a clear case of injustice. It is in this regard that a blanket and categorical declaration of unavailability of an equitable remedy tends to diminish the capability of courts to resolve disputes in accordance with justice and fairness.

Even when statutes restrict the grant of equitable remedies by courts, the accepted rule is that such statutory language is to be strictly construed. Unless a statute by words or by a necessary implication restricts a court’s equity jurisdiction, the full scope of that jurisdiction is to be recognized and applied. Some courts go further to declare that a diminution of equity jurisdiction may not be implied, but requires explicit statutory language or a clear and valid legislative command.[189]

The lack of jurisdiction here is not to be lightly implied. After all, Section 19 (6) of B.P. Blg. 129 provides RTCs with a catch-all jurisdiction over “all cases not within the exclusive jurisdiction of any court, tribunal, person or body exercising jurisdiction or any court, tribunal, person or body exercising judicial or quasi-judicial functions” which necessarily includes cases for the annulment of judgments of quasi-judicial agencies. Moreover, the recognition of such remedy is in harmony with the fundamental principle of administrative law that quasi-judicial powers will always be subject to true judicial power – that which is held by the courts.[190] The availability of judicial review over administrative action is well-recognized notwithstanding the absence of a statutory provision for judicial review of such action.[191]

By this token, the rationale of Macalalag loses its leg to stand on for annulment of judgments of quasi-judicial agencies being a form of judicial review does not rely on an explicit provision of law for its existence. The scope of judicial power includes the authority of the courts to determine in an appropriate action the validity of the acts of the political departments.[192] Indeed, the purpose of judicial review, in administrative law, is to keep the administrative agency within its jurisdiction and protect substantial rights of parties affected by its decisions. It is part of the system of checks and balances which restricts the separation of powers and forestalls arbitrary and unjust adjudications.[193]

C. A Vacuum in the Law

Ultimately, the tragedy of Macalalag is that it creates a vacuum in our system of law for parties whose rights are aggrieved by the perpetuation of extrinsic or collateral fraud or collusion in arriving at a decision of a quasi-judicial agency. The unique facet of annulment of judgment is that it is the only remedy available to a party who is aggrieved by a judgment procured through extrinsic fraud by which he is essentially deprived of his day in court. The absence of such remedy provides an attractive incentive for the perpetration of fraud for the doctrine of administrative res judicata provides a formidable barrier which ensures the enjoyment of the fruits of the fraud.

While it may be argued that the remedy of petition for relief of judgment may be availed of in cases of fraud,[194] the said remedy has its inherent limitations that render it infirm to address the concerns raised cases of this nature. A petition for relief from judgment under Section 3 of Rule 38 is resorted to when a judgment or final order is entered, or any other proceeding is thereafter taken, against a party in any court through fraud, accident, mistake, or excusable negligence. The manner by which relief from judgment is exercised is by filing a petition in the same court and in the same case to set aside the judgment, order or proceeding. Such petition must be filed within sixty (60) days after the petitioner learns of the judgment and within six (6) months after entry thereof.[195] However, it must be emphasized that a petition for relief from judgment is a remedy available only to parties in the proceedings where the assailed judgment is rendered.[196] Accordingly, it has been held that a person who was never a party to the case, or even summoned to appear therein, cannot avail of a petition for relief from judgment.[197] Furthermore, the party filing a petition for relief from judgment must strictly comply with the two (2) reglementary periods, i.e., the petition must be filed within sixty (60) days from knowledge of the judgment, order or other proceeding to be set aside; and, within a fixed period of six (6) months from entry of such judgment, order or other proceeding. Strict compliance with these periods is required because a petition for relief from judgment is a final act of liberality on the part of the State, which remedy cannot be allowed to erode any further the fundamental principle recognizing the finality of judgments.[198]

More importantly, it can likewise be plausibly argued that the rationale expressed in Macalalag can operate to deny party litigants of the remedy of relief from judgment from quasi-judicial agencies. Indeed it takes no stretch of imagination that a petition for relief from judgment is likewise an exception to the rule on finality of judgments and, therefore, belongs to the same category as petitions for annulment of judgment, and therefore, by the logic of Macalalag, requires positive statutory basis for its availment.

This controversy is all the more compounded by the availability of the remedy of collateral attacks against void judgments rendered by quasi-judicial agencies. In Dela Cruz v. Quiazon,[199] the Supreme Court hinted that the correct remedy should have been a collateral attack against the judgment by the DAR Secretary who ordered the cancellation of the Certificates of Land Transfer (CLTs) issued to respondents:

The Court ruled that the issuance, recall or cancellation of certificates of land transfer falls within the Secretary’s administrative jurisdiction as implementor of P.D. No. 27.

To conclude, respondent’s remedy is to raise before the DAR Secretary the matter of cancellation of petitioner’s CLT as an incident of the order granting the landowners’ application for retention over the said landholding. In the same forum, petitioners can raise the issue of the validity of the DAR order granting the application for retention based on their claim of denial of due process, or in a separate action specifically filed to assail the validity of the judgment. A collateral attack against a judgment is generally not allowed, unless the judgment is void upon its face or its nullity is apparent by virtue of its own recitals.[200]

The same remedy finds further judicial approval in the Commission on the Settlement of Land Problems (COSLAP) cases.[201] Such cases involved instances in which the COSLAP exceeded the limited grant of jurisdiction vested unto it by law. In such cases, the Court emphatically held that any judgment rendered by a quasi-judicial agency with lack or excess of jurisdiction is susceptible to collateral attack:

Since the COSLAP has no jurisdiction over the action, all the proceedings therein, including the decision rendered, are null and void. A judgment issued by a quasi-judicial body without jurisdiction is void. It cannot be the source of any right or create any obligation. All acts performed pursuant to it and all claims emanating from it have no legal effect. Having no legal effect, the situation is the same as it would be as if there was no judgment at all. It leaves the parties in the position they were before the proceedings.[202]

The availability of the remedy of collateral attack was even recognized in Springfield which eventually became the basis for the eventual remand of the case to the CA.[203]

While the availability of the remedy collateral attack is indeed welcome, it is nonetheless a remedy of limited applicability. For one, its grounds are only limited to lack of jurisdiction, whether over the subject matter of the case or over the person of the defendants to the action.[204] Thus, the remedy was clearly intended to remedy those errors which are palpably clear and are apparent from the very face or the recitals of the judgment.[205] It contemplates judgments that are patently void where mere inspection of the judgment is enough to demonstrate its nullity on grounds of want of jurisdiction or non-compliance with due process of law.[206] It is, in fine, a highly restricted remedy which can only prosper in exceptional circumstances where the lack of jurisdiction is apparent or, at the very least, can be established from the very evidence in the records of the case in which the assailed judgment was rendered.[207] Accordingly, a collateral attack against a final judgment cannot prosper on the basis of extrinsic evidence.

Indeed, the importance of the remedy of annulment of judgment is that it specifically tailored to address injuries arising from fraud of a character that deprives parties of their day in court. Extrinsic fraud contemplates such situations that fall within that broad gray stretch in the spectrum defined by violation of due process, on one end, and satisfaction of due process, on the other. It covers such cases where a modicum of satisfaction of the essence of procedural due process is present, that is, parties have been given an opportunity to be heard; but there is the intervention of extrinsic fraud by the one of the parties that has the effect of depriving another party of the constitutionally guaranteed right of amply and reasonably arguing one’s case before an impartial tribunal. Instances of such fraud or deception practiced on a party by his opponent are: keeping a party away from court, by giving him a false promise of a compromise, or where the defendant never had the knowledge of the suit, being kept in ignorance by the acts of the plaintiff, or where an attorney fraudulently or without authority connives at his defeat. These instances show that there was never a real contest in the trial or hearing of the case so that the judgment should be annulled and the case set for a new and fair hearing.[208]

In such cases, introduction of extrinsic evidence is essential for it was by the very perpetration of fraud or in collusion that occasioned the deprivation of the absolute right to be heard to a party litigant. Accordingly, the very raison d’etre of annulment of judgment is to serve as a final check against the palpable violation of the right to due process through insidious machinations. To deprive of parties of an effective remedy by reason solely of the silence of the law is to reward fraud and countenance injustice.

VI. Moving Forward: Propositions for Due Process

A. A Viable Framework in Springfield

Having laid down the essential doctrines and expounded on the issues confronting the Philippine legal system on this matter, the logical question to be asked is: what do we do to remedy the situation? As firmly entrenched the Macalalag doctrines may seem, there exist feasible solutions to address the loophole existing in our law to check against the ever-present danger of fraud in our society.

The closest viable solution that does not deny the availability of the remedy of annulment of judgment is the case of BF Northwest whose doctrine was alluded to in Springfield. The case of BF Northwest relies on “pre-B.P. Blg. 129” doctrines which if taken a step further recognize a dichotomy of jurisdiction with respect to annulments of final judgments. The basis of the doctrine in those cases is the rule of non-interference, which provides that where legislation provides for an appeal from decisions of certain administrative bodies to the CA or to the Supreme Court, it means that such bodies are co-equal with the RTC, and logically, beyond the control of the latter.[209]Pursuant to the doctrine of non-interference, bodies of co-equal rank and stature have no authority to interfere with the proceedings of a tribunal of equal jurisdiction, much less to annul the final judgment of such body.[210] The doctrine of non-interference of trial courts with co-equal administrative bodies is intended to ensure judicial stability in the administration of justice whereby the judgment of a court of competent jurisdiction may not be opened, modified or vacated by any court of concurrent jurisdiction.[211]

A deeper probe into the rulings of the Supreme Court in Springfield and BF Northwest provide a viable framework for the remedy of annulment of judgments of quasi-judicial agencies. The grant to the CA of exclusive original jurisdiction over actions for annulment of judgments of RTCs can be reasonably interpreted to include exclusive original jurisdiction over tribunals which are co-equal in rank and stature with RTCs. Such an interpretation is consistent with the overall system established by B.P. No. 129. Jurisdiction over other quasi-judicial bodies and officers which are co-equal in rank and stature with inferior courts can be reasonably concluded to be vested over RTCs pursuant to Section 19 (6) of B.P. Blg. 129. In fact, this view has received favourable judicial approval in Springfield itself:

Significantly, B.P. Blg. 129 does not specifically provide for any power of the RTC to annul judgments of quasi-judicial bodies. However, in BF Northwest Homeowners Association, Inc. v. Intermediate Appellate Court, the Court ruled that the RTCs have jurisdiction over actions for annulment of the decisions of the National Water Resources Council, which is a quasi-judicial body ranked with inferior courts, pursuant to its original jurisdiction to issue writs of certiorari, prohibition, and mandamus, under Sec. 21(1) of B.P. Blg. 129, in relation to acts or omissions of an inferior court. This led to the conclusion that despite the absence of any provision in B.P. Blg. 129, the RTC had the power to entertain petitions for annulment of judgments of inferior courts and administrative or quasi-judicial bodies of equal ranking. This is also in harmony with the “pre-B.P. Blg. 129” rulings of the Court recognizing the power of a trial court (court of first instance) to annul final judgments. Hence, while it is true, as petitioners contend, that the RTC had the authority to annul final judgments, such authority pertained only to final judgments rendered by inferior courts and quasi-judicial bodies of equal ranking with such inferior courts.[212]

Applying the following rules, it can be concluded that a remedy of annulment of judgment from decisions, resolutions, and final orders of quasi-judicial agencies and officers indeed exists. In determining which court has jurisdiction over the action for annulment of judgment, the logic of Springfield, following the doctrine of non-interference, provides that the CA can take cognizance of an action for annulment of judgments of quasi-judicial agencies having the rank and stature of an RTC pursuant to Section 9 (2) of B.P. No. 129. By necessary implication, all other quasi-judicial agencies and officers have the rank of inferior courts and petitions for annulment of their final judgments are cognizable by the RTC under Section 19 (6) of B.P. No. 129. The rank of a quasi-judicial agency is determined by the rank of the court or tribunal to which its decisions, resolutions, and final orders may be appealed to.[213] Accordingly, those whose final judgments may be directly brought to the CA by way of ordinary appeal have the rank of RTCs. Such quasi-judicial agencies include those enumerated by Section 1, Rule 43 of the Rules of Court, such agencies whose final judgments are explicitly made appealable to the CA, and such other agencies which do not fall within the appellate jurisdiction of the Supreme Court and the Office of the President.[214] On the other hand, quasi-judicial agencies and officers having the rank of an inferior court are those whose final judgments are appealable to an RTC or a tribunal having an equivalent rank thereto. Included in such category are agencies whose judgments are appealable to the Office of the President pursuant to the doctrine of exhaustion of administrative remedies and the doctrine in Calo.

The advantage of this perspective in interpreting our laws on jurisdiction is that it closely adheres to the dichotomy of jurisdiction established by the Supreme Court under Rule 47 of the Rules of Court.[215]

The foregoing interpretation of the law is not without authority and finds ample justification in the principle that the law, like nature, abhors a vacuum.[216]Where the law is silent, any provision of law that suffices to fill the void should then be made to apply.[217] As applied to the problem involving annulment of judgments, mere silence of the law should not by itself be the end, for it creates a vacuum in the law for litigants whose rights are violated by extrinsic fraud.

Despite its legal merits, the problem with the foregoing framework is that it tends to get complicated in cases where split appellate jurisdiction is recognized by law. A prime example of this is appeal from final judgments of the DAR Secretary pursuant to R.A. No. 6657 and other agrarian reform laws. As was adverted to earlier, the case of Valencia[218]effectively legitimized the availability of an appeal to the Office of the President,[219] pursuant to internal rules of procedure promulgated by the DAR pursuant to statutory authority and an appeal to the CA pursuant to Section 54 of R.A. No. 6657. The problem in such a case lies in the impossibility of properly applying the doctrine of non-interference for such an agency because the law provides with a dual character of having the rank of an RTC (since there is a mode of an appeal to the CA) and an inferior court (since there is a mode of appeal to the Office of the President, which under the same doctrine, has the rank of an RTC).

Consider as well the Board of Investments (BOI), a policy-making body and a regulatory agency tasked with facilitating the growth of investments in the country created pursuant to Executive Order No. 226.[220] Apart from exercising policy-making and regulatory functions, the BOI exercises quasi-judicial power in the resolution of controversies arising from the implementation of the Omnibus Investments Code.[221] It appears, however, that in the exercise of such power, the law provides for two (2) modes of appeal from an action or decision of the BOI, depending on the nature of the controversy. The Court expounded on this nuance in the case of Phillips Seafood (Philippines) Corp. v. Board of Investments:[222]

E.O. No. 226 apparently allows two avenues of appeal from an action or decision of the BOI, depending on the nature of the controversy. One mode is to elevate an appeal to the Office of the President when the action or decision pertains to either of these two instances: first, in the decisions of the BOI over controversies concerning the implementation of the relevant provisions of E.O No. 226 that may arise between registered enterprises or investors and government agencies under Article 7; and second, in an action of the BOI over applications for registration under the investment priorities plan under Article 36.

Another mode of review is to elevate the matter directly to judicial tribunals. For instance, under Article 50, E.O. No. 226, a party adversely affected by the issuance of a license to do business in favor of an alien or a foreign firm may file with the proper Regional Trial Court an action to cancel said license. Then, there is Article 82, E.O. No. 226, which, in its broad phraseology, authorizes the direct appeal to the Supreme Court from any order or decision of respondent BOI “involving the provisions of E.O. No. 226.”[223]

Indubitably, the framework enunciated in BF Northwest and Springfield will be impracticable for agencies possessing a complicated appellate procedure as the DAR and the BOI. Worse, such leads to sanctioning split jurisdiction which is abhorred in our jurisdiction and anathema to the orderly administration of justice.[224]

B. Moving Forward: Legislative Reform

A simpler approach to reform would be to simply amend the law. It bears stressing that the perceived void by the Supreme Court can be easily cured by amending Section 9 (2) of B.P. No. 129 to include within the original and exclusive jurisdiction of the CA judgments rendered by agencies and officers in the exercise of quasi-judicial power. Such an amendment is curative in two (2) aspects. First, it has the immediate effect of remedying the vacuum in the law which will persist so long as the doctrine of Macalalag is continuously tolerated by the legislature and the judiciary. The recognition of the remedy of annulment of judgment will afford parties injured by final judgments specifically procured by extrinsic fraud, an adequate remedy. More importantly, it will curb the growing practice of certain administrative agencies of assuming jurisdiction over such petitions on the mistaken notion that it has jurisdiction over the subject matter.[225] Quasi-judicial agencies, however, have only been given limited jurisdiction which only pertains to the areas over which they possess technical expertise. In this regard, it is well to recall the following pronouncement in Department of Agrarian Reform Adjudication Board v. Lubrica:[226]

In general, the quantum of judicial or quasi-judicial powers which an administrative agency may exercise is defined in the enabling act of such agency. In other words, the extent to which an administrative entity may exercise such powers depends largely, if not wholly, on the provisions of the statute creating or empowering such agency. The grant of original jurisdiction on a quasi-judicial agency is not implied…In conferring adjudicatory powers and functions on the DAR, the legislature could not have intended to create a regular court of justice out of the DARAB, equipped with all the vast powers inherent in the exercise of its jurisdiction. The DARAB is only a quasi-judicial body, whose limited jurisdiction does not include authority over petitions for certiorari, in the absence of an express grant in R.A. No. 6657, E.O. No. 229 and E.O. No. 129-A.[227]

The grant of specialized jurisdiction cannot necessarily include the authority to nullify a judgment; even if such judgment is rendered by a subordinate office. It bears stressing that while a Department Secretary may possess the power of supervision or control, the aforesaid powers do not constitute an exception to the finality and immutability that attaches to a judgment rendered in the valid exercise of jurisdiction by the administrative officer vested with quasi-judicial discretion and the lapse reglementary period for appeal.[228]

Second, the amendment, as proposed, reinforces the prevailing legislative intent behind B.P. No. 129, which is to constitute the CA as the primary tribunal that exercises the power of judicial review over judgments of quasi-judicial agencies. It bears stressing that Section 9 (3) of B.P. No. 129 has vested the CA with exclusive appellate jurisdiction over all final judgements, resolutions, orders or awards of quasi-judicial agencies, instrumentalities, boards or commissions. Since the CA has exclusive appellate jurisdiction over quasi-judicial agencies, petitions for writs of certiorari, prohibition or mandamus against the acts and omissions of quasi-judicial agencies, like petitioner, should be filed with it.[229] Accordingly, petitions for annulment of judgment may be construed as forms of judicial review over quasi-judicial agencies and therefore are properly cognizable by the CA.

Needless to say, the CA is in the best position to assume such jurisdiction considering that it is the one vested with original exclusive jurisdiction over judgments of RTCs under Section 9 (2) of B.P. No. 129. With respect to other courts in the judiciary, the CA has the most exposure to cases involving annulment of judgment and has, accordingly, acquired technical expertise in resolving such petitions.

VII. Conclusion

There is nothing so sacrosanct in the processes and proceedings of quasi-judicial agencies that render judgments rendered thereby to be absolutely beyond reproach. Courts, as they are, possess strict and technical rules of procedure and evidence to facilitate the process in arriving at the truth and as a safeguard to ensure that the ends of justice and fairness are achieved. Yet it has been recognized time and again that notwithstanding such safeguards, even court proceedings and processes are vulnerable to collusion and fraud which necessitated the very availability of remedies to correct such injury in the interest of justice. Indeed the very development of equitable doctrines and remedies is but an implied acquiescence to the reality that even the most stringent standards of procedure, technicality, and evidence cannot guarantee with absolute certainty the satisfaction the ends of justice by mere compliance therewith. In such exceptional cases where a palpable breach of fairness is committed, the law must remain faithful to the essence of civil liberty: the right of every individual to claim the protection of the laws whenever he receives an injury.[230] To do otherwise, would be to sacrifice justice and fairness to the altar of formality. Indeed, equity will not suffer a wrong to be without a remedy. Ubi jus ibi remedium. And where there is a right, there must be an effective remedy.[231]

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*Cite as Darwin Angeles & Anne Jaycelle Sacramento, A Dead Limb on the Quasi-Judicial Tree: The Necessity of Recognizing the Remedy of Annulment of Judgment Against Fraud and Collusion in the Exercise of Quasi-Judicial Power, 86 Phil. L.J. 643, (page cited) (2012).

The authors would like to acknowledge their Professor in Administrative Law, Alfredo Molo III, for his insightful lectures and comments which greatly influenced the authors’ theory and approach in this article. The authors likewise acknowledge Professor Mary Rose Tan for encouraging and inspiring them in taking up legal writing. The authors likewise acknowledge Bryan Dennis Tiojanco for his helpful comments to this article. Finally, the authors thank Sandra Mae Magalang for her valuable editorial inputs and Earla Kahlila Langit for working closely with the authors and her gracious fortitude.

*** Legal Researcher, Office of the Assistant Secretary for Legal Affairs, Department of Agrarian Reform (2010-present); Research Associate, Institute of Human Rights, University of the Philippines Law Center (2011-2012); Project Consultant, Humanwrongs.org – An Online Legal Library for Human Rights Defenders in the Philippines (2011); J.D., University of the Philippines College of Law (2013 expected); B.S. Business Administration, cum laude, University of the Philippines, Diliman (2008).

[4] Solesbee v. Balkcom, 339 U.S. 9, 16 (1950) (Frankfurter, J., dissenting). Due process is violated if a practice or rule ”offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Snyder v. Massachusetts, 291 U.S. 97, 105­ (1934).